Hon ANNETTE KING (Minister of Justice) : Part 3 of the Criminal Procedure Bill amends the District Courts Act. It gives the District Court jurisdiction to try all indictable offences expect those in the schedule. The jurisdiction of the District Court will not change very much, but the new schedule does correct some anomalies.

The new schedule also permits changes to be made to the middle band of offences by way of Order in Council rather than by legislative change. This provision was added at the select committee and, if passed, will allow some class A drug offences to be put in the middle band to be dealt with by the District Courts rather than by the High Courts. This would ease pressure on the High Courts arising particularly from the volume of methamphetamine cases that are now being heard. One of the reasons we now see so many more methamphetamine cases is the very strong policing approach that the New Zealand Police takes to methamphetamine clan-labs. If we look at the number of clan-labs that were found by the New Zealand Police in 1999, we see that it was around three or four for that year. If we look at the number being found now, we see that it is around 200 a year. A lot of work is going into catching those who produce methamphetamine, which means they are appearing in the High Court. There is now a large backlog of those offenders in the court, and this part would allow their cases to be heard in the District Court. This is something that judges have been asking for, for some time. They believe that it is an imperative change to be made in this bill, and they have asked us to get on and make that change.

I am pleased that we are now back to debating the Committee stage of this very important bill, which, in my view and in the view, obviously, of the select committee, who made no amendments to this part, would make the workings of our courts much better. It would make access to justice fairer and faster, and surely that is what most legislation should reflect.

Dr RICHARD WORTH (National) : As the Minister has just noted, this is very far-reaching legislation that has been delayed for a very substantial period in this House. It was first introduced in June 2004; it had its first reading in that same month and year. It went off to the Law and Order Committee, but since it came back it has languished in the Committee stage. So I am certainly pleased to see the legislation being advanced.

In the context of Part 3, the part we are talking about, there are clearly two strong, underlying themes that are core elements of policy. The first relates to transparency, and the second really relates to management processes in the courts. The reality of the present is that there are very significant delays in the courts, with consequences for accused persons facing trial, for the courts themselves, and, of course, for those who give evidence. I will make some particular comments on Part 3, reflecting some of the points that the Minister has made.

Part 3 is concerned only with amendments to the District Courts Act 1947—old legislation. In general terms, the Minister made the point that the District Court is being given jurisdiction to try all indictable offences except those listed in new schedule 1A, inserted by schedule 3 of the bill. That may not significantly increase the jurisdiction of the court, but, as the Law and Order Committee made very clear in its commentary on the bill, changes to the schedules are to be made by regulations. In constitutional terms, that is generally undesirable. It is not appropriate for subordinate legislation to make changes to the work of this House—for delegated legislation to change primary legislation. That is why the issues that arise in Part 3 were considered by the Regulations Review Committee. It was because two of the clauses, clauses 62A and 92A, contained regulation-making powers. It was certainly the view of the Regulations Review Committee that new clause 62A raised a fundamental issue of principle in respect of the delegation of law-making powers by Parliament. In constitutional terms, we are in a world known as “Henry VIII” clauses, where the involvement of the executive trespasses on the work of this Parliament.

I think that, with some degree of sophistry, the Law and Order Committee sought to get around that constitutional difficulty, because it argued in the report it made to Parliament that the decision as to where a case is committed for trial will have no bearing on the rights of the person charged or on the sentence that may be imposed. Doubtless, it was buttressed in the belief it took by dint of the support it had from the Chief Justice. I guess a better answer with regard to those issues might be that the Regulations Review Committee—because those changes will be made by regulation—will have jurisdiction to look at the issues, and I hope that those who are at present on the committee and those who in the future will be members of the committee will take up the challenge to look at the regulations in a critical way.

It gives me no pleasure to say that under this Government the courts have become truly choked. We have seen, sadly, a number of cases where accused persons have been able to walk free by dint of the substantial delays, because they have succeeded in persuading judges to grant stays of proceedings. I hope that Part 3, with the other parts contained in this legislation, will substantially ameliorate the delays that are occurring, and that now that the issues between the major parties have been resolved, we will see this legislation be put in place at the earliest opportunity.

• The question was put that the amendments set out on Supplementary Order Paper 97 in the name of the Hon Mark Burton to Part 3, and the following amendment in the name of the Hon Annette King to clause 60, be agreed to:

to omit from subparagraph (ii) of section 28A(1)(c) in clause 60(1) “to any”, and substitute “for any”.

• Amendments agreed to.

• Part 3 as amended agreed to.

The CHAIRPERSON (Hon Marian Hobbs): The debate on Part 4 includes debate on the amendments set out on Supplementary Order Paper 97 in the name of the Hon Mark Burton.

KATE WILKINSON (National) : I am delighted to take a call in relation to Part 4 of the Criminal Procedure Bill. I find there is some irony that a bill designed to address delays, albeit in the judicial system, has itself been delayed more than 4 years. Having said that, it is my pleasure to address Part 4, which in essence refers to juries and, in particular, to changes to the current requirement for a unanimous verdict in criminal jury trials to a majority verdict of 11:1. If the jury has deliberated for at least 4 hours and the jurors have been unable to reach a unanimous decision, the foreman has stated there is no probability of the jury reaching a unanimous decision, and the court considers that the jury has had a reasonable time to deliberate, bearing in mind the complexity and the nature of the trial, then in that case a majority verdict may be allowed.

It was interesting to look back at some of the anecdotal situations way back in 2004. I have here an article from the New Zealand Herald about a situation with a jury, in which comments were made that “ ‘People wanted to get home to watch Coronation St or see the kids or whatever they do. After 5 o’clock, the whole situation became irrational beyond your belief.’ The last two to desert his viewpoint were smokers, one of whom had been more adamant than himself at the outset that the accused could not have committed the crime. ‘But after 10 hours without a cigarette, he would have locked his own mother up.” I think if one looks at anecdotal situations like that, one can certainly see the merit in not requiring the unanimous verdict of a jury. There are obviously situations where one of the jurors may be intransigent for whatever reason, or may not be responsive to logical argument—and often we see that even in this Chamber—and this amendment may certainly overcome that.

In civil cases under the bill the majority verdict may be by at least three-quarters. I note that the New Zealand Law Society submitted that juries should not comprise fewer than 10 jurors, but this submission was not carried forward in the bill. I would certainly be interested in the Minister’s comments as to why that recommendation was not listened to.

There are also provisions for certain persons to be excluded from jury service—for example, lawyers, which is a fairly obvious exclusion—and for restrictions on the use of the jury panel list in an attempt to address juror interference or intimidation. Defendants in the case may be shown a copy of the list but it may not be left in the possession of the defendant or any witnesses or victims, and reasonable steps must be taken to ensure that the list is not copied. Again, anecdotally, we hear of instances of juror intimidation, which is a situation that really should be avoided wherever possible.

There are also provisions whereby judges may discharge persons being summonsed for jury duty on the additional ground of having difficulties understanding or communicating in the English language. Again, anecdotally, we have heard of jurors who have sat through the duration of a trial but are unable to understand what is happening. That situation should be remedied by Part 4.

Also of note is the reduction in the number of challenges available without cause. That has gone from six down to four, although we are not sure why. Under the bill the jury districts are being expanded and the pool of jurors is being increased, so why then reduce the number of challenges? Again, I would appreciate the Minister taking a call on that point as well.

I return to juror interference. If the Law and Order Committee and others were concerned about the possibility of juror interference or intimidation, then the provisions of clause 82 in relation to sequestration of juries seem somewhat anomalous. Why let jurors leave before reaching a verdict and return to resume deliberations? Surely that is the very time that they may be subject to intimidation and subject to influence. They may be subject to uninformed opinions of family and friends. They could be swayed by external influences. Again, I ask the Minister in the chair to take a call on the benefit that he perceives there is in abolishing that sequestration requirement, which has worked in the past.

The CHAIRPERSON (Hon Marian Hobbs): Before I call Dr Worth I will just say that there is a change in the sound in the Chamber, in that people having conversations in here are much louder today for some reason. I think it is to do with the changing of the sound system. It makes it hard for me in the Chair to hear the speeches being made. I ask members to lower their voices or keep away from those very sensitive microphones. It would be a very good idea. Thank you.

Dr RICHARD WORTH (National) : Kate Wilkinson has skilfully sketched out the changes in Part 4. I just want to focus on one particular aspect, because it is a huge change in the criminal law. That is the entitlement to be judged by a jury of one’s peers, and that all 12 of them must reach a unanimous verdict. This bill proposes a major change in that regard. The present law in New Zealand is that in all criminal cases the verdict of the jury must be unanimous. Now we are to contemplate this change to majority verdicts in criminal cases. The proportion we have chosen is 11:1. So to convict, 11 jurors must say “guilty”, but one may stand out.

It is interesting to look at other jurisdictions to see what they have done. There is no doubt about it: there has been an increasing trend towards majority verdicts. I will pick a few illustrations. In the United Kingdom the proportion is 10:2, in the Northern Territory it is 10:2, in Tasmania it is 10:2, in South Australia it is 10:2, in Victoria it is 11:1, in Oregon it is 10:2, in Hawaii it is 10:2, and in Alaska it is 10:2.

These majority verdict changes are just part of a raft of changes in this legislation. There are also changes relating to the very existence of juries in complicated cases, and cases where juror intimidation might be an issue. I thought it was interesting that the Law and Order Committee heard some arguments to the effect that there was no evidence of rogue juror problems in New Zealand. The Law Commission took a quite contrary view in that regard and said that there was. It is difficult to identify the incidence of rogue jurors in New Zealand because, in terms of the Juries Act, what goes on in the jury room is not to be disclosed. But certainly my experience as a lawyer before entering this House was that rogue jury outcomes were not at all uncommon.

I tell the Committee of one such illustration, which I think is typical. An accused person faced charges of being a drug mule. This person had brought substantial quantities of cocaine into New Zealand for a dealer, and was apprehended by the Customs Service and charged. My informant sat on that particular jury. That informant told me—and there was a hung jury in this case—that several of the jurors were not prepared to convict the accused person because the accused person had not admitted to the offence. Because there had not been an admission to the police, the jurors were prepared and determined to stay out of a deliberation of “guilty”. It just shows what can go on in the closed confines of a jury room.

I think it is interesting, too, that the Law Commission has apparently “found that in a study of 48 jury trials, five were hung, two of which involved rogue jurors refusing to participate in deliberations, and three with rational dissenting jurors.” Members of the Committee may know that the reality of jury selection, with rights of challenge, is that defence lawyers seek to construct a jury of malleable and simple folk. That is a reality of the jury selection process. The reality is, also, that a number of jurors have had brushes of one sort or another with the police, and often quite clearly have no sympathy for the police or Crown view of events—for the prosecution view of events. So I do not doubt for a moment that there is real merit in this plan to have majority verdicts as we stay with the jury system—a system that both English common law and the United States constitution recognise as a fundamental civil right.

DAIL JONES (NZ First) : I will speak briefly about payment of jurors, referring to clause 82B. I think we should give a great tribute to all those New Zealanders who attend and take up the role of jurors, sometimes for some considerable length of time. I think we probably all believe they do not get paid anywhere near enough for the wonderful contribution they make to our society. Clause 82B gives some recognition to the role of the juror, and provides that the principal Act is amended by adding the following subsection: “The jury rules prescribing those fees and expenses may authorise the chief executive, if satisfied in a particular case that it is desirable to do so, to increase a sum otherwise payable under those rules.” I ask the Minister what consideration has been given to giving effect to this provision from time to time. I ask that he clarify just who the chief executive is—whether that is the chief executive of the justice department or of the courts department. There is no interpretation section here—the phrase “chief executive” must be in the main Act, I presume. As I looked at it I was wondering about those words and just what they meant, because we should do all we can to reward jurors as much as we can—and that is still nowhere near enough—for the wonderful work they do.

Apart from that, of course, what we are doing in New Zealand is amending the provision of the Great Charter of 1215 in Runnymede, which provided for the beginnings of trial by one’s peers—the barons in those days—and which has developed through history to one’s fellow man and woman. New Zealand First supports Part 4 of the bill, and I look forward to any answers forthcoming from the Minister.

Hon RICK BARKER (Associate Minister of Justice) : I will just pick up on a couple of points. I thank Dail Jones for his contribution. I reply to him, simply, that the chief executive he refers to will be the chief executive for the department, which is the Ministry of Justice. He asks when this has been done in the past—well, it is only about 2 years ago, I think, that we increased jury fees substantially. I guess it is time to look at the matter again. This legislation makes the system to do that much easier than it was previously.

The second point I make to Mr Jones is that if someone is quite distressed about the level of fee reimbursement they get, and they are suffering financial hardship as a consequence of their service, they can apply to the registrar of the court, who can make an individual decision about that. So there are ways of relieving the pressure. But I would pick up on the point that he has alluded to, which is that being on a jury—being part of a panel of people who sit in judgment of one of their fellow citizens—is, in my opinion, a very important part of citizenship. I think we sometimes need to remind the public of that—that if we want to have a justice system and to be tried, and made judgment on, by our peers, then we have to make a contribution to that as well. We should see it not as an onerous burden but as a privilege of citizenship. The contribution by Richard Worth was, as usual, well made. He traversed the world, as he is wont to do, giving out the list of facts and figures on who has what—

Hon Judith Tizard: And the whole of his lifetime back to Henry VIII.

Hon RICK BARKER: —and as usual delved into history. I am surprised he has only gone back as far as Henry VIII on this particular occasion. But Mr Worth makes the point very plain that many other jurisdictions have moved to a majority of 10 for and two opposed. We have taken a more conservative approach—11:1—which I think says that we are being cautious in this regard. I support that.

Kate Wilkinson made the observation that we could go down to 10:2 and asked why we did not make changes in that area. I refer her to page 24 of the commentary on the bill, which states: “New section 22A does not permit juries of fewer than 10 except with the consent of both parties.” That is a sensible thing. It continues: “We considered specifying that a majority verdict should be permitted only if there are 12 jurors, but decided against it. If defence counsel has concerns in any particular case about a verdict from a majority of fewer than 9 out of 10, they can choose not to consent to the trial’s proceeding.” So the decision rests with the defence in that particular case.

The last observation I make is that the Criminal Procedure Bill is a bill that I think members generally agree is full of many good points. The debate shows the constructive discussion we have had, and the constructive discussion we have had about significant reform, and I welcome that. Just to recap, I note that this particular legislation will do quite a lot for our juries in New Zealand. It will extend the jury districts from 30 to 45 kilometres from the courthouse. It will update the list of persons who do not have to serve, or cannot serve. It will make the penalties for not serving go up, so there is a bit of carrot and stick in here. It changes the rules around challenging juries, and there are many other changes. This is a significant package of reform, which, I think, will improve the jury system quite significantly.

• The question was put that the amendments set out on Supplementary Order Paper 97 in the name of the Hon Rick Barker to Part 4 be agreed to.

• Amendments agreed to.

• Part 4 as amended agreed to.

The CHAIRPERSON (Hon Marian Hobbs): Part 5 covers clauses 84 to 98. It includes debate on schedules 4, 5, and 6. It also includes the Minister’s typescript amendment to omit proposed new clause 98A set out on Supplementary Order Paper 97, the amendments set out on Supplementary Order Papers 97 and 206, and the typescript amendments to clause 92.

KATE WILKINSON (National) : Again, it is my pleasure to stand and take a call. Part 5 basically relates to the abolition of oral preliminary hearings, commonly known as depositions. We have heard arguments both for and against depositions, and on whether they should be retained or abolished. Even the law profession itself is somewhat divided on this point. On the side of retaining depositions, it is argued that oral pre-trial hearings frequently remove complexities, thus narrowing the issues and often shortening trials. The display of evidence often results in guilty pleas by defendants, and/or accommodations by the prosecution, which may also lead to guilty pleas or withdrawals of charges. As a result, there may be fewer trials, trials may be shortened, and the entire process may be streamlined.

I was interested to have a response from the Minister for Courts to a question I lodged. In cases where depositions have been heard, I asked how many of those cases resulted in the defendant, or accused, pleading guilty, and how many proceeded to a hearing. In the 12 months to 30 September 2006, in the District Courts there were 1,044 guilty pleas resulting from the depositions, there were 485 guilty pleas after the defendant had been committed for trial, and 736 cases proceeded to hearing or trial.

On the side to abolish depositions is the argument that they are less important since the Official Information Act was passed, and also since the Pearce decision relating to pre-trial disclosure. The arguments were also made that eliminating mandatory oral hearings will make the system more efficient and will eliminate preliminary hearings being used as delaying tactics and fishing expeditions, and that witnesses will have to testify only once in court, so the victim is not put through the ordeal twice, thereby extending grief, especially for families of murder victims.

Further reasons to abolish depositions are that preliminary hearings are currently being used as a forum of disclosure—effectively, a mini-trial—and that is not their intended purpose. I note that in other jurisdictions, including the United Kingdom and Canada, mandatory preliminary hearings have been abolished in favour of a robust disclosure regime. So if we are to abolish depositions, we must ensure that our disclosure regime is also sufficiently robust.

I also note the Minister’s Supplementary Order Paper in relation to depositions, which provides for the parties to apply for oral evidence orders and also for a review in 2 years’ time of the Summary Proceedings Act, and we welcome that review. Bearing in mind, however, that this bill passed its second reading over 2 years ago, it is not exactly the ideal example of how to reduce delays. An article in the Dominion Post nearly 2 years ago, on 10 October 2006, referred to the number of court hours spent processing depositions hearings as having almost doubled in the last 10 years, consuming an estimated 8,500 hours of court time in 2005. That article in the Dominion Post went on to say that depositions “have been accused of clogging the court system, delaying justice, and costing New Zealanders millions of dollars annually.” In fact, the latest figures—which, again, I have obtained from the Minister—show that judicial JPs spent, in the year to 30 September 2006, something in the vicinity of 5,118 hours nationally on depositions. So those are somewhat interesting figures in the context of this debate.

One of the issues, however, is really that this bill is designed, if you like, or is intended to reduce the delay in the court times. If, as one senior law lecturer at Auckland University, Mr Scott Optican, suggests, we should be focusing on trial delays, then one would have to peer very hard at this bill to see any suggestion that it addresses such trial delays. We have horrific statistics of trial delays, and we have horrific statistics of stays of prosecution, and, unfortunately, they do not seem to be getting any better. Although I support the good things in this bill, it is unfortunate that there are some opportunities that, I think, have been missed. Certainly, the Government has missed the boat on addressing the issue of trial waiting-times. In fact, the recent figures in relation to those trial waiting-times do paint a fairly grim picture. The median waiting-time for High Court jury trials increased by 70 percent to 304 days—that is almost a year—since 2003, and 10 percent in the 5 months from July. Waiting times in District Courts have increased by 27 percent to 270 days since 2004, and by 11 percent in 5 months. I am hopeful that avoiding the need for depositions may reduce some of that waiting time, but I would have to say that I do treat that with some scepticism, although also with some hope.

Some courts have waiting times of more than a year. The High Court at Wanganui has a median waiting-time of 383 days—that is over 12 months. Whangarei has a median waiting-time of 382 days. Those times have doubled since 2003 in Auckland, Blenheim, and Gisborne. District Courts in Rotorua have a median waiting-time of 389 days. Blenheim has 384 days, and Invercargill 369 days. The longer the waiting list, the longer the victims have to wait for justice, and the more chance there is of people avoiding trial, as happened in 2006 and 2007 when 18 people walked free, 10 of them because of systemic problems in the justice system.

I would like the Minister for Courts to take a call and not just tell us how much he has spent on the justice system but give some explanation as to why trial waiting-times are not being addressed in this bill. Having said that, that answer may be self-explanatory, because, with respect, if I may quote the Minister, on 7 September 2006, he said: “I do not agree with the member’s assertion” that justice delayed is justice denied. I would have to say that, for a Minister for Courts, that comment is a very sad indictment.

Under this Government, waiting times in outstanding cases have got worse and worse. The Government is failing to ensure that justice is served in a timely manner. This bill was introduced 4 years ago, but frankly I would have to say that this Government simply does not regard efficient, effective justice as a priority. After 4 years it is good to see that this Criminal Procedure Bill is before the House. I understand that it will pass by a majority of the House, and I hope that it will make some difference to court waiting-times and to the effective, efficient delivery of justice.

CHESTER BORROWS (National—Whanganui) : I rise in respect of Part 5 and I have to say that, in offering these few words in respect of it, the issue relates to a belief I have held very closely for a long time. Members will know that Supplementary Order Paper 50 in my name sought to remove this part from the bill. The reason why I wanted to do that was that it was part of the stuff that I believe I bring to this House, and for me it is fundamentally a question of justice. It is not a popular or sexy thing to want to extend justice and rights to those people whom society abhors. I want to live in a country where people are innocent until they are proven guilty, and where black-letter law supports that ideal. I believe that people should have the opportunity to be able to cross-examine those who would make assertions against them.

In response to the people who have come to me and said that we are only wasting time and dragging our heels through the court process, I guess that my question would be to ask them what we are trying to do here. This part of the bill has been sold on the basis that it will speed up the court process. In fact, court delays are down to a number of things, not to the existence of depositions hearings. If we look at the statistics supplied by officials from the Ministry of Justice, we would think that 95 percent of the matters that went to depositions hearings went on to trial, but, in fact, they do not. When we look at those statistics, we see that 47 percent of them go on to trial, but the rest of them fall over for one reason or another. Either the prosecution is found to be wanting and the charge is dismissed, or guilty pleas are made at depositions hearings because witnesses come up to brief and defendants get the frights, realise that they will be convicted, and realise that it is best that they grab hold of the discount for pleading guilty at depositions hearings rather than waiting until trial. Or else, as a result of counsel listening to the evidence, after the committal has happened there is a discussion between the prosecution and defence counsel, and pleas are made then. So around the country about half the matters that are defended initially and would go to trial fall short of going to trial.

That means, obviously, that depositions hearings actually speed up the court process, because without them, and without the opportunity to examine some witnesses before the court, there would be more trials. If we go on to remove depositions hearings in the form they are in now, and if people are not able to cross-examine witnesses orally, people will make section 344A applications and section 347 applications before judges. Those applications will have to be heard before the trial judge, who is paid a heck of a lot more than the two justices of the peace who sit there for free, listening to a depositions hearing. For instance, if this had happened in the Jhia Te Tua homicide case, which is travelling through the court process at the moment, there would have been 3 weeks of applications in respect of those two sections, and in that case the depositions hearing lasted about 8 days.

There are probably four reasons why there are significant court delays. One is that judges frequently lack the force of personality needed to hold either the defence or prosecution counsel to account as far as timetables and disclosure rules go, to ensure that they are met and matters rattle through the court process in a speedy way, which is what the system is designed for them to do. The second reason for court delays is that prosecutors, principally police officers, do not disclose the information they are required to disclose. If we look at why depositions hearings are adjourned time and time again, we see that one significant reason comes out more commonly than any other: a lack of disclosure on behalf of the police.

The third reason for court delays is that some defence counsel within the system are milking it. They believe they have a right to milk the system because of inequities within the legal aid system—between the rates of pay between legal aid lawyers and Crown solicitors, for instance. Crown solicitors are paid at the intermediate rate, as per the legislation; in respect of depositions hearings they are paid for 15 hours’ preparation time, and they also have 8,500 sworn officers of the New Zealand Police to go about doing their bidding in terms of making inquiries. Legal aid lawyers are paid for 3 hours’ preparation time, and if they want someone to make inquiries on their behalf, they have to go back to the Legal Services Agency and ask whether they can employ a private investigator to make those inquiries. So there is a huge inequity of arms. I do not agree with having legal aid lawyers milk the system—nobody does—but that is the third reason. Another reason why some trials lag on is that there is an under-resourcing of the Institute of Environmental Science and Research in relation to methamphetamine trials.

I think that the fundamental question is whether we want to live in a country where one is deemed to be innocent until proven guilty. If we do, then this is the system that we would stick with. If we do not, then we could go and live in a place like Zimbabwe or Fiji and, no doubt, we would be on the right side of the M16 and we would not have to worry about it. But I believe that this is a fundamental question, and that what we are doing here today is extremely significant with regard to jurisprudence in this country.

The reason why I have withdrawn my Supplementary Order Paper is that we have managed to get from the Government a couple of concessions. One of them relates to the provision where a person makes written submissions for an oral depositions hearing and is allowed to make only written submissions and not speak to them. It is fundamentally incongruous in what is supposed to be a judicial system that one cannot even speak to one’s submissions. The only other place in the criminal law where one does that is when the judge is deciding a banding in terms of which court the trial should be held at. To suggest that we could have something that is so fundamental to equity in this country and within our jurisdiction and that one could not speak to it is absolutely abhorrent. So, thankfully, the Government has rolled over on that provision. The second point is that after 2 years there will be a review as to how well the system works. I am, somewhat reluctantly, resting assured that there will be a review. Given a successful outcome at the election that is coming up, I hope very much to be around and to be able to hold the Government, and the Solicitor-General in particular, to account as to how that review will be managed.

I intend to ask questions of the Minister in the chair, the Hon Rick Barker, shortly—so I hope he is paying close attention—about the measures he will put in place now so that when we want to look at this matter in 2 years, we do not get the dumbarse response we get from a lot of officials, saying they do not collate certain information and have never collected it. We will want to know which trials have been proposed and which trials have been abandoned for one reason or another. We will want to know the reasons given for that abandonment. We want to know which measures there will be to ensure that when we come to that review, we will know how many were proposed, how many were abandoned, and how many guilty pleas were entered and at which stage—at depositions hearings, or prior to depositions hearings, with the threat of those hearings looming. For instance, we will want to ask how many pre-depositions conferences were put off, or would have been put off, because the police failed to adhere to the disclosure laws as they exist under this legislation. At the moment no one can tell us about that. At the moment if we ask the Ministry of Justice why pre-depositions conferences have not occurred or why depositions hearings have been delayed, no one can tell us whether it is because disclosure has not been lived up to by the officers in charge of the case.

I want the Committee to realise that what is happening today is truly significant. I know this issue is not sexy; I know it flew under the radar as far as popular opinion out there goes. I know that damn near all the judges who lobbied members of Parliament—particularly the Government members—in favour of this part of the legislation have never stood in a criminal trial in their lives.

DAIL JONES (NZ First) : That is a very good point at which Mr Borrows concludes his remarks, because I wholeheartedly support him in that respect. Listening to Mr Borrows and Ms Wilkinson, one would almost take the view that they will be voting against Part 5 of the Criminal Procedure Bill. I know where their hearts lie in this matter—there is no doubt about it. New Zealand First will be voting against Part 5 of this bill. That was our policy at the last election, and when we set out a policy we keep that policy.

I was very concerned at the delay in this bill going through its Committee stage. After all, I was a member of the Law and Order Committee, from time to time, at the end of its deliberation and consideration on this bill—way back in 2005. When I came back into the House in 2008 I expected this bill to be well and truly passed, but, lo and behold, it is still on the Order Paper. Of course, in one of the press statements Justice Randerson is quoted as saying that he wanted the bill passed because of the part that will allow methamphetamine trials to be moved down to the District Court. As we have heard today, that is in Part 3 of the bill, which was passed in 15 to 20 minutes—it went through in no time whatsoever. That could have been done quite easily in 2006. New Zealand First is delighted to have taken part in that work.

One of the issues that has cropped up has been the great concern about giving evidence twice. Well, as members have heard today from Kate Wilkinson—who made an excellent point—of those cases that go to depositions, 1,044 end in guilty pleas. Without depositions, that means 1,044 cases will now be going to the High Court for trial. What will be cheaper? What will be quicker? Instead of 1,044 cases being considered by two JPs in a little courtroom somewhere, hearing the evidence and, at the end of it, a guilty plea, there will now be fully fledged High Court trials lasting for days with all sorts of discovery tying up District Court judges, and possibly High Court judges. Well, that is no saving. Treasury has got that one all wrong. It sold the Minister a pup on that particular issue. We have heard that another 485 defendants plead guilty before the trial comes to court. Well, that is another saving as a result of doing a very simple depositions case. Then 736 cases go to a High Court hearing. That is fair enough. The evidence has been put before people in terms of our system. I make the point that in our system, with our belief in the rule of law—and New Zealand First wholeheartedly supports the rule of law—every person in this country is innocent unless he or she is proved guilty. As the two National Party members have just indicated, that type of situation is likely to go out the window.

One of the issues raised by people concerned about having to give evidence twice was apparently in regard to a prosecution relating to a Mrs Elliott. But as has been made clear—Mrs Elliott was giving evidence on behalf of another person—it was revealed that Mrs Elliott was not required by either the prosecution or the defence to appear at the hearing. Her evidence could have been given in the hand-up paperwork, meaning that she had to appear only at the trial. Her personal request to appear was granted by the prosecution, yet she complained about having to go to the depositions hearing. If I look at this case, my prediction is that her evidence will be used as part of an insanity defence and that is the reason why she did it. So there is more than one way of looking at things, and I suspect the Minister cannot be using that as an example—and other people should not be using that as an example—of how one should consider this part of the legislation.

I have appeared as counsel in depositions hearings. I have been involved in a depositions hearing as a victim. I had to give evidence at a depositions hearing where I was the victim. I was cross-examined by my assailant, not by a lawyer. So I know what it is like to be a party to a deposition hearing and to be cross-examined not just by a lawyer but by the defendant. I know what it feels like to be there. I say to all of those people who say they know what it is like to be there that I sympathise with them, but as I mentioned when it comes to making oneself available for jury service, it is part of being a citizen of New Zealand to be ready to give evidence in a court, to tell the truth as one sees it, and to let the jury decide ultimately what will happen. In my case, the person concerned had finally instructed a lawyer—I think the lawyer was sort of forced upon him—and we were going up to the High Court for the trial. When we were ready to go into the trial—I was waiting to give evidence before the case started—the lawyer was able to convince that person that the evidence was so overwhelming that the best thing he could do would be to plead guilty, which he did, and fortunately I did not have to go through the High Court jury trial. The point, again, is that the evidence was there at the deposition hearing, it was there for counsel to advise the defendant on the facts, and the lawyer was able to tell the defendant that he did not have a dog’s show in hell, or whatever the phrase is—he was guilty. The defendant pleaded guilty and we did not have a time-consuming, expensive jury trial.

I heard in the submissions that have gone before that the New Zealand Police would like to do away with depositions. I have appeared at a depositions hearing for a person who was the subject of an armed offenders squad call-out. His house was surrounded by the armed offenders squad, all the lights were put on it, megaphones were used to order him to come out, he came out, he had a gun put at his head, etc., and he was charged. We appeared at the depositions hearing, where half the evidence was dismissed, and the other half was dismissed before we got to the High Court hearing. That person was a police officer, but when it comes to one’s own self it is a different story is it not? It is all very well for the police to say that they do not want depositions, but if the people in the system happen to be police officers, and they are charged by the police, there is no doubt that, as in this case, they want depositions. In this instance it was a dreadful case that should never have been brought. The JPs tossed out some of it and the High Court judge finished off the rest.

As I hope I have indicated, what we are eliminating here today is a system that saves time and trouble. On the evidence and the facts given to us by the National member, we will now move into a system that will be much more complicated. When I first saw this bill at the Law and Order Committee I was concerned that the only application that could be made was in a written form. As Mr Borrows has pointed out, that can be strung out for a long, long time if one wishes. Ultimately, of course, all of those cases that would have been dealt with at depositions hearings on a guilty plea basis, or subsequently, will now all have jury trials. That is an utter waste of money. I just cannot understand how that system could be permitted.

Mr Borrows might be a little bit more up to date on this than me, but as far as section 347 applications are concerned—which is when one can lodge an application with the judge to say there is no evidence and that the case should be tossed out—how will one get one’s evidence before a judge to lodge an application under section 347? There will be a whole lot of affidavit evidence and suchlike, whereas now we have the deposition evidence at least to put before the judge, and any other evidence that might be able to be provided, to get rid of the case in terms of an application under section 347. That will be much more difficult and much more costly, and a lot more legal aid will be involved in supporting Part 5.

We oppose Part 5. We support the right of every person to be innocent, unless he or she is proved guilty, in a system that is totally transparent, which is our present system—rather than what we are moving into, which as far as I can see is really Treasury-driven and very little else. If Parliament had been keen to move things along on the methamphetamine situation, that could have been done years ago, and raising that as an issue recently is really just a very sick joke.

Dr RICHARD WORTH (National) : This issue that we are now debating—Part 5 of the Criminal Procedure Bill, which National supports; National supports the whole bill—has deeply divided the legal profession, and if it can be justified, it can be justified only on the aspiration that it may speed up the criminal process. There is no doubt about it, at all—the Government has realised how wrong its approach was either in the course of the Law and Order Committee hearing or more recently. The relevant provision is section 180 in clause 92, and is headed “Determination of application for oral evidence order”. Subsection (1) is the critical provision: “Before a District Court Judge makes an oral evidence order on an application … the Judge must be satisfied,—(a) if the proposed order is for the oral examination of a witness who has provided a formal written statement that it is necessary to hear the witness in order to determine whether there is sufficient evidence to commit the defendant for trial;”. There are other provisions that are not relevant to the issue that we are now talking about. The reality of what was in that drafting is that no oral evidence orders would ever have been made; no oral evidence applications would ever have been granted. The reason for that is that there is always a substantial amount of material that would generally enable a judge, or a justice of the peace, to conclude that there was sufficient evidence. The Government has recognised that; it has made changes now by way of two Supplementary Order Papers, and, significantly for this particular part, it has provided that where it is in the interests of justice to hear the witness, such orders may be able to be made.

Although I accept what the previous speaker has said, and has said eloquently, we need to look at the Criminal Procedure Bill as a whole. I think that National’s misgivings would have been even deeper if there were not these wide-ranging provisions for better criminal disclosure. As Chester Borrows has said, with all the experience that he has as a lawyer and as a very senior police officer, there are huge deficiencies around the criminal disclosure process. I hope that this Government, in the short and further time that it remains in office, gives urgent consideration to that issue and ensures that, when this legislation is passed, insufficiency of criminal discovery will warrant clear attention by the Parliament if it continues. We see some provisions in this bill that go some way to dealing with that issue. There are, of course, statutes such as the Official Information Act that bear on criminal discovery, but unless criminal discovery has a true integrity then the arguments that have been so well urged on us by Mr Borrows will be real threats to the integrity of the legal system.

I just say that this proposal, which initially had as its object the elimination of mandatory preliminary hearings, would mean that witnesses would testify only once in court. The argument was that by so limiting witness involvement it would free valuable court time. We have heard, I think, a credible argument that that in fact may not be so. Certainly, there has to be a judgment made in the future as to whether these changes have merit, and that is dealt with in the second part of Supplementary Order Paper 206 with the provisions relating to the review by the Solicitor-General, or a person nominated by him or her.

I leave the issue by saying that those who have listened to this debate will judge that National has some real concerns about supporting this part, even in its amended form. It may well be that the review indicates that what has happened today was, in fact, an error.

Hon RICK BARKER (Associate Minister of Justice) : I rise to make a contribution on Part 5, and, firstly, to say that sometimes a lack of balance is shown in debates in this Chamber. In this debate it has been claimed that if this part of the bill is passed, then New Zealand will be somehow comparable with Zimbabwe and that one would need to be on the right end of an M16 rifle. I say that any sane New Zealander who is listening to this debate today will know that that view is extreme and irrelevant, and that it devalues the currency of the contribution. We have heard also that out of the window today will go the rule of law and the principle of being deemed innocent until proven guilty. I assure the public that that is simply not the case whatsoever. Such extreme comments do not reflect particularly well on this very important debate. We should debate the issue, as we have done.

Richard Worth elegantly put his finger on the central issue. The central issue is about disclosure, and speaking as someone who is not as deeply immersed in the law as some other members are, I was somewhat surprised to learn that the rules on pre-trial disclosure vary across the country. They are unclear and not as specific as they should be. I was amazed at that. I was interested also to learn about, and to get clear in my head, the purpose of depositions hearings. The purpose is to give to the defence all of the available evidence that will be brought forward by the prosecution, so that people can hear what will be put before the court for it to consider and have the opportunity to prepare themselves for the trial. It is so there will not be trial by ambush. I think that every New Zealander would reject trial by ambush. People are entitled to know what evidence will be presented at a trial. The central theme of depositions is that if all the evidence that has been presented were to be believed, would a reasonable jury contemplate a conviction? The purpose of depositions was not about testing the veracity of the evidence; it was not supposed to be about testing whether the person was believable. The purpose of depositions was simply about disclosure.

But over the years we have seen a change whereby, in fact, depositions hearings became a pre-trial. The witnesses were being tested as to the veracity of their evidence; it was tested in various ways. One has only to read the book by Louise Nicholas about her experiences in depositions hearings to come to the conclusion that some defence teams were using depositions hearings as a way of intimidating witnesses as best they could, in order to make sure they did not turn up.

Dail Jones: Aw!

Hon RICK BARKER: Mr Jones groans, but I say that central to our justice system will always be the idea of being deemed innocent until proven guilty, and that everybody is entitled to a fair trial. There will be a fair trial. What is being changed here is the structure. It is being changed so that there are much more rigorous proposals for disclosure, and the rules will be tightened up so that the defence can be assured that it has all the information.

Some people are saying that if we do not have depositions hearings, then somehow the information will not get to the defence. That is not true; the defence will have all of the information. The default in that logic is saying that if we do not have depositions hearings, then those people who are contemplating their future at trial will not make the decisions that they did at those hearings and that somehow they will automatically go to trial. I say that is not necessarily true. Kate Wilkinson has put forward a figure of 144 people who have pleaded guilty prior to going to trial. It is very conceivable that an individual, when presented with all of the weight of evidence by the prosecution, will make exactly the same decision regardless of whether he or she gets the information in writing or orally. The information will be the same; there will be no difference in it. Those individuals who are likely to decide that the weight of evidence against them is so overwhelming that they will plead guilty now and not go through the process of the trial are likely to make exactly the same decision. Some members have argued that people who are given the information in writing, as opposed to orally, will make a different decision. But those members have not put up any evidence, or made a case, in order to argue for that view.

We have also had the argument put that this bill will not improve the speed of decision making in trials. I want to put forward several things about that. Firstly, Kate Wilkinson has identified, from questions that I supplied the answers to, that about 8,000 hours of court time is taken up with depositions hearings—maybe the figure is closer to 6,000 hours. Whatever the figure is, the majority of that time will not be required for depositions hearings. Some time will still be required, because from time to time someone will be required to present his or her evidence orally, as the Supplementary Order Paper provides for. If thousands of extra hours of court time are to become available, it is not a leap in logic to say that thousands of hours of extra court time that are not available today will then be available for court sittings. I expect that the availability of thousands of extra hours of court time will lead to cases coming to trial more quickly. I believe that this will speed up the process. There is no doubt that it will put more pressure on the prosecution to make sure that its evidence in a case is put together well, or else it will suffer the consequences of failure to do so.

The other part of this issue, which I think is very important, is that it has been made public by numbers of people that a pre-trial depositions hearing is a traumatic experience. People do not mind going to trial for a trial, but to have to go through it twice is incredibly damaging to the family. It traumatises people again. We have only to look at the television coverage over the last 12 or 18 months to see case after case of that happening. To those people who want to keep the pre-trial oral depositions hearing, I put this challenge. If it is so worthwhile, they should put forward a case that justifies retraumatising the victims of crime twice—once, completely unnecessarily. That is it. If there is any justification for doing that, let us hear the evidence. I have not heard a particularly compelling argument for it.

Putting that to one side, we then come to the other key part. There are various opinions about this change, but time will be the test of it. I come back to the point that has been made about the review, and I give the Committee an assurance that the review will happen in 2 years’ time. It will be led by the Solicitor-General, and it will be thorough. At the start of this process there will be a requirement for those who are to carry out the work to set out the information that needs to be collected and captured so that we can make a serious analysis of the situation. In 2 years’ time—or 6 months after that, by the time the report comes forward—we will have a very clear picture of the situation. My prediction is that cases will come to trial more quickly, that the processes will be improved, and that a large number of people will still plead guilty prior to going to trial because the weight of evidence against them will be such that they will see the inevitability of the outcome.

I personally do not think there will be a great deal of change, but I do predict that it will be much better for the victims of crime. People in this Chamber have often talked about the victims of crime, and here is one occasion when this House can do something to improve the circumstances of all victims as they have to pass through the criminal justice system. This is one area where I think we will make a significant difference and a very big positive move for the victims of crime. I think this Committee should welcome that with open arms.

Having said that, there is an acknowledgment by me and by others in the Chamber that there are serious reservations about this proposal. I do not treat them lightly. I accept them as serious and genuinely held views. We will come to a point in 2 years’ time where we will then assess those predictions against the reality of the outcome. If we find that the circumstances that the naysayers have put forward have come true, then the House has its own power to make changes. I am absolutely confident it will do so if the weight of evidence supports doing that. If, on the other hand, the predictions made by those who promote the bill and the changes are true, then I look forward to people such as Mr Dail Jones saying they did not think so at the time, but they now accept that it was the right thing to do and was certainly the right thing to do for the sake of victims. Thank you.

CHESTER BORROWS (National—Whanganui) : I rise to make a couple of clarifying points in respect of comments made by the Minister, Rick Barker. Initially I made a comment in respect of people who believe that people who are arrested and brought before the court do not deserve to be called innocent until proven guilty, and that was that it was they who should go and live in Zimbabwe or Fiji, as I asserted. I stand by that, but it was not said in respect of this legislation. That would be to inflate the issue far beyond where it was.

I want to make two or three points. One of them is that I was earlier described as a senior police officer. Well, I never was. I got one rung off the ground, as a detective sergeant. But what I did do, as an officer in charge of a case, was appear before 50 or 60 depositions hearings, if not more. Later on, as a prosecutor, I probably ran another 30 or 40 depositions cases, and then as defence counsel I probably appeared in something like 20 or 30 of them. I have got my head around depositions. The Minister said that the purpose of depositions was to lay out all the evidence before defence counsel and before the court, but that is not true at all. All the prosecution has to do is supply sufficient information to prove there is a prima facie case to answer; that is it. As a prosecutor in a rape case, for instance, especially given the law as it was amended in 1985, I would put the statement of the complainant. I would probably call the mother to prove age, and then present the case of the officer in charge of the case, and that was it. I had only to prove a prima facie case. I did not have to trot out all the evidence.

I want to say a few words for the Hansard record. When the New Zealand Bill of Rights Act 1990 came in, the police lost a number of cases because they did not adhere to that Act. I predict that when this legislation is enacted, the police will lose a whole lot more cases because they will not take this legislation seriously as it relates to disclosure. If the public thought it got its ears bashed around with three not guilty verdicts in the last few weeks, they had better be prepared to lose a lot more. I cite, for instance, the Kāhui case. On the Thursday before the trial was due to start on the Monday, the defence counsel found that there had been very shoddy disclosure, in the form of toll records from a cellphone that was in the company of Macsyna King. The dates of all the cellphone transactions were listed on the jobsheet, except for the one that showed one particular transaction that happened in Māngere in the window of time that could have allowed somebody other than Chris Kāhui to have committed the offence against the children. That was not disclosed. The police did a number of inquiries. They interviewed Macsyna King and her friend at length. They made a number of jobsheet inquiries. None of it was written down, and it was never disclosed. I do not know when that was brought out before the jury, because I could not interrogate them and neither could anyone else, and I say “Good job.” to that. What was the effect of finding out that that fundamental fairness around disclosure was shown not to have happened in that Kāhui case? I wonder how that played on the mind of the jury members who, having adjourned for lunch and then deliberated for 10 minutes, came back and gave a not guilty verdict?

I just want to have on the Hansard record that there is an expectation, I believe, that where the police do not adhere to disclosure laws as they are written—and let us face it, at the moment the police are already bound by common law; they are already bound with heaps of jurisprudence, and they tend to ignore those from time to time in significant cases—where it is in black and white within this Act that it is the expectation of the Parliament that the police will adhere to those laws, and where they do not adhere to those laws, then the cases could easily be dismissed. There is a public expectation of the police acting in fairness on this issue.

DAIL JONES (NZ First) : I wholeheartedly support what Mr Borrows had to say. I sincerely hope that the police and the Ministry of Justice take his comments to heart, and that we do not have endless problems with jury trials in the future. From the point of view of procedure, New Zealand First will vote no only once and that will be against Part 5 as amended, rather than voting on all the amendments. We will be supporting the bill as a whole, because in principle the bill as a whole is sound, apart from Part 5.

• The question was put that the following amendment in the name of the Hon Annette King to proposed new clause 98A set out on Supplementary Order Paper 97 in the name of the Hon Mark Burton be agreed to:

To omit this clause.

• Amendment to the amendment agreed to.
• The question was put that the amendment set out on Supplementary Order Paper 97 in the name of the Hon Mark Burton to insert new clause 98A as amended, the amendments set out on Supplementary Order Paper 97 in his name to Part 5, the amendments set out on Supplementary Order Paper 206 in the name of the Hon Annette King to Part 5, and the following amendments in the name of the Hon Mark Burton to clause 92 be agreed to:

to omit from section 178(1)(c) “sections 109, 110, or 111 of the Criminal Justice Act 1985, or”;

to omit from section 180(1)(c) “section 109, section 110, or section 111 of the Criminal Justice Act 1985 or”; and

to omit from section 181(1)(b) “section 109, section 110, or section 111 of the Criminal Justice Act 1985 or”.

• Amendments agreed to.

CHESTER BORROWS (National—Whanganui) : I rise in respect of clause 1, which is the title of the Criminal Procedure Bill. As has been said several times in the last few minutes, this legislation is going to change significantly the way the courts do business in respect of matters going to trial in this country. It is obviously a step that is not taken lightly by any of the parties in the House. Over the last 2 years we have had discussion after discussion in relation to what is going on here, and we have sought to make accommodations at various times.

I guess what really drew matters to a head in the last few weeks was comments made by the Chief High Court Judge, Judge Randerson, in respect of this bill and the fact that it has, in his words, languished before the House. It was disappointing for me to find out today that New Zealand First was actually voting against the transition of Part 5 of this bill, because previously when I spoke to its members they indicated that they would not be supporting my Supplementary Order Paper, now withdrawn. Over the last 2 years there has been a cross-party understanding on how this legislation would proceed, so one had an unusual example of the Green Party, the National Party, the Māori Party, United Future, Taito Phillip Field, and Gordon Copeland all supporting the premise that depositions should remain in situ as they were. The ACT party had not declared its hand at that time, and as far as we knew New Zealand First was voting for the bill in the form as it was presented. It is interesting to note that of all the parties within the House, in the circumstance as it was before we knew how voting was going to go today, in fact it would have been Labour and Jim Anderton voting against it.

I think it is a bit of a shame, really, that it has taken as long as this to have the sort of measured debate that we could have had. We tried to have the debate, and when the judge made his comments he was talking about banding of methamphetamine trials, because this bill—or Act, as it shortly will be—allows for methamphetamine trials to be run in District Courts and go through the court process a lot quicker than they should, because they are not horribly complex, they just have serious consequences, and that does not necessarily mean that they are complex.

Then we had the argument around double jeopardy, which also came up in the last couple of weeks, and the speculation, for instance, from the Prime Minister that if National would only get off its bum and vote for this legislation, then the double jeopardy rules would be in it and they would be relaxed, so if evidence could be found against someone previously found to be not guilty, then he or she would be able to be tried again. Neither of those issues had anything to do with depositions at all.

Then we had an example played out on television of a lady who had witnessed a tragedy—the murder of her daughter in horrifying circumstances—and she made the point that if depositions were to be only in written format, then she would not be retraumatised. But I think it is only fair to point out in a very measured way that in that particular case neither the prosecution nor the defence required her to give evidence. In fact, quite bravely, she chose to give evidence so that she could do good by her daughter, and to nail home the strong evidence that they had against the killer. In that case she took the opportunity to give the evidence that she very dearly wanted to give, and I believe it was her right to do so. If I were the officer in charge of that case I would be very proud that she did. But I do not believe that one incident should create the law. I believe that in the jurisdiction that we have, which is about justice, justice should also be extended to those who do not deserve it, because the New Zealand Bill of Rights Act in our country actually extends to everybody. It extends to the most despised and the most hated, and to the least deserving within our community, just as it extends to those who deserve it the most. Thankfully, that is something we can bask in, in this country—that we actually live in a country with a justice system that allows us to have all the privileges and freedoms that a Western democracy can have.

But it is interesting to point out that one should not bend the law on emotions. As much as we can relate to the emotions, and as much as we can try to understand, thankfully most of us will never have to undergo the sort of tragedy that Mrs Elliott had to witness, which she then bravely gave evidence for, or the point that Louise Nicholas made when she made the same call. Hopefully, our loved ones will not be involved in those traumatic events. The fact is that one should change laws because it is right to change them. One should not be swept along on some tide of wanting to speed up a court system because it is expensive, or because it reflects badly on a ministry, or because it reflects badly on those who are administering it. I believe—and I am sure members of this House believe this in their heart of hearts—that if we are going to change something as fundamental as the criminal law, we should do so because it is right to do so.

• Clause 1 agreed to.