Hansard and Journals
Criminal Procedure Bill — First Reading
Criminal Procedure Bill
Hon RICK BARKER (Associate Minister of Justice), on behalf of the Minister of Justice: I move, That the Criminal Procedure Bill be now read a first time. I also intend to move that the bill be referred to the Law and Order Committee for consideration. This bill contains criminal procedural forms that the Government has been working to develop since 2001. It responds to Law Commission recommendations and developments overseas, particularly in the United Kingdom. It includes changes relating to jury trials, exceptions to the double-jeopardy rule, and reforms to preliminary hearings and disclosure.
I turn to the matter of jury reforms first. This bill proposes to introduce 11:1 majority verdicts instead of the current requirement for unanimity. That is partly to address the problem of rogue jurors who, by refusing to participate in the deliberations, produce a hung jury for reasons that have nothing to do with the merits of the case. Retrials take time and money and prolong the ordeal for everyone involved, including victims and witnesses. Alternatively, sometimes a single juror is pressured by the other 11 to return a verdict against his or her conscience—which can be traumatic for that person. Majority verdicts will allow that dissent to be registered, and therefore produce more honest results. They will also make jury tampering by bribery or intimidation more difficult for organised criminals to achieve. Although the majority verdict reform will inevitably attract comment and discussion, it is not radical. The UK, for example, has had 10:2 majority verdicts since 1967.
This bill also provides for trial by judge instead of jury in two circumstances: firstly, when the trial is likely to be complex and longer than a month. Evidence suggests that jurors have trouble coping with very long trials, particularly where there is a large amount of very complicated evidence. There is also provision for a judge-alone trial if there is evidence of jury intimidation, which from time to time has been an issue in gang-related cases. For similar reasons, new restrictions will be placed on the distribution of jury lists.
Recently, the Government announced a $9 million boost to jury fees. This bill contains further measures to make it easier to serve on juries. These include allowing jurors, when summoned, to defer jury service for up to 12 months to a more convenient time of their choice. It also becomes an offence for employers to prejudice the position of an employee by reason of that person’s absence on jury service. At the same time, the penalty for failing to answer a summons will increase from $300 to $1,000.
The bill creates two exceptions to the double-jeopardy rule: tainted acquittal and cases of compelling new evidence. That is consistent with the law in the United Kingdom, and with reforms proposed in Australia. The tainted acquittal exception will apply if an acquitted person is later found guilty of evading justice at the first trial by committing an offence such as perjury or intimidating a witness. That will ensure that those who resort to such tactics cannot benefit from their own wrongdoing, and will therefore remove the incentive to offend in that way. This reform was recommended by the Law Commission and followed the case of Kevin Moore, in which a gang member who was tried for murder persuaded a witness to give false evidence for him and was acquitted. Because Moore could not be tried again, he literally got away with murder.
The second exception relates to compelling new evidence. The reason for this exception is the importance, particularly for victims, of ensuring that the criminal justice system can achieve the right result for very serious crimes. There have been cases overseas where conclusive evidence of guilt has surfaced, post-acquittal. It is my view that most New Zealanders would be outraged if that situation occurred here and our justice system was unable to bring the offenders to justice.
The compelling new evidence exception departs from the criminal justice tradition of only one trial. For that reason, it is subject to a long list of safeguards. The exception will apply only to offences with a maximum term of imprisonment of more than 14 years, such as murder, rape, and class A drug dealing. The evidence must have been unavailable at the time of the first trial, so that the police have no incentive to indulge in sloppy practice. The evidence must be reliable and indicate with a high degree of probability that the acquitted person is, in fact, guilty. Consent to proceed in cases of compelling new evidence must be brought at each stage. The police will not be allowed to reinvestigate and acquit a person without consent from the Solicitor-General. The Court of Appeal must in turn be satisfied, following reinvestigation, that compelling new evidence of guilt exists, and that a retrial would be in the interests of justice. The double-jeopardy exceptions are not retrospective, which means that acquittals obtained before the legislation commences will remain intact.
I welcome submissions on this issue. I would also like the Law and Order Committee to consider whether a 14-year threshold for compelling new evidence will capture the right kinds of offences, and whether the tainted acquittal exception should apply only when an administration of justice offence has been committed by third parties.
The third major issue of reform in this bill relates to the preliminary hearings procedure. Preliminary hearings are currently held before jury trials to act as a filter to ensure that improper prosecutions are dismissed at an early stage. However, in practice, police almost always—in about 93 percent of cases—collect sufficient evidence against all alleged offenders to satisfy the court that there is a sound basis on which to proceed. For this and other reasons, the Law Commission concluded that preliminary hearings are largely redundant. Such hearings also require victims and other witnesses to duplicate their court appearances, which is both stressful and unduly demanding. The bill therefore provides that the standard pre-trial procedure will be for parties to present their evidence in the form of written statements, with automatic committal for trial unless either party applies for an oral hearing. Oral hearings will be permitted only in limited circumstances where either party wishes to examine one or more of the witnesses, and a District Court judge agrees that it is appropriate. This will reduce demands on court staff and facilities, and may mean that some cases can be more quickly disposed of.
In the absence of a preliminary hearing, it is important to ensure that adequate and timely disclosure still occurs so that defendants can prepare their cases and determine how to plead. At present, prosecution disclosure before a trial is regulated by a mixture of case law and statutory rules under the old Official Information Act and the Privacy Act. This bill codifies disclosure requirements. Under these procedures, the prosecution is required to disclose to the defence all relevant information unless there is a good reason to withhold it. Defendants also have to disclose obligations relating to alibi evidence and notice of intention to call expert witnesses. In some circumstances, defendants will also be able to obtain information held by third parties such as the Institute of Environmental Science and Research. One issue the select committee considering this bill may wish to explore is whether an equivalent right should be available to the prosecution—for example, if it wished to obtain material used by the defence experts in preparing its brief.
Overall, this bill contains numerous amendments to criminal procedure legislation, all designed to ensure that criminal proceedings can be more efficiently managed while ensuring maximum fairness for everyone involved. I recommend that the bill be referred to the Law and Order Committee for consideration. I commend the bill to the House.
RICHARD WORTH (National—Epsom) : This is a bill of 100 clauses that has very far-reaching significance. From the perspective of National members, we support this bill going to the Law and Order Committee that has been assigned to deal with it. It will be one of the most important pieces of work, I believe, that will be done in this Parliament. It will attract substantial interest from those who study criminal jurisprudence and, if even only some of these reforms are enacted, the impact on the criminal courts will be truly substantial.
There are, as the previous speaker has said, a number of substantial changes that the bill proposes. The first, but I do not necessarily think the most controversial, deals with majority verdicts in criminal cases, and I would like to come back to that in a moment if I may. Then there is the issue of trial by judge alone instead of by a jury, where there is evidence of juror intimidation, or the trial is complex and long. Quite clearly, the philosophical issue there is whether we should move away from what has been a hallmark of the legal system in most common law countries, which has seen an accused person tried by his or her peers and not by a judge alone.
There are provisions dealing with more limited challenges to potential jurors, and in the context of changes to the jury system, increased penalties for failing to respond to jury notices. Then, as the previous speaker has said, there is the highly controversial proposal of the Government, in the context of the qualifications the Minister made, to substantially change the law relating to double jeopardy. I will come back to that.
Perhaps two further changes are worth noting: preliminary hearings, where the evidence would be presented in written form unless the judge decides that an oral hearing is required; and, finally, revamped provisions for criminal disclosure.
It is quite clearly the case that in a number of criminal trials, the defence seeks to catch the prosecution unaware. Where there are issues of guilt and innocence to be determined in the context of an offender’s conduct, it is important that there be no surprises. A surprises strategy can often lead to a miscarriage of justice.
I come back then to the first topic that I said I would return to, which relates to majority verdicts. The present law in New Zealand is that in all criminal cases, the verdict must be unanimous. That is not a statutory requirement, but derives from the common law. There is no statutory requirement for unanimous verdicts. As far as statute law goes, it is simply this. Section 17 of the Juries Act states that: “Every jury shall comprise 12 jurors.” The Act says nothing about the numerical balance required to support a verdict. While a jury of fewer than 11 jurors is legally possible in New Zealand, a court is prohibited from proceeding with less than that number, unless both the prosecutor and the accused consent.
There has obviously been much discussion in common law jurisdictions relating to majority verdicts, and I guess the locus classicus of the argument in favour of majority verdicts is based on the judgment of the English Court of Appeal in a case called R v Walhein.
It was in that decision that the court said: “It makes for great inconvenience and expense if jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest.”
A second justification for majority verdicts would be that such majorities help to prevent jury nobbling. It must be a matter of concern to all politicians, no matter what their political philosophies might be, that the rate of hung juries has continued to rise. The number of hung juries has risen from 3 percent of trials in 1993 to over 10 percent between January and August 1999. Those figures, which come primarily from the Law Commission in its preliminary paper, are the latest figures that I am aware of. In that preliminary paper, the Law Commission said in part that it was of the view that: “If current rates of hung juries are substantially maintained or increased in the period prior to publication of our final report, majority verdicts should be introduced.”
My personal view is that the Government’s proposals of 11:1 need to be looked at critically, and I would favour a majority balance of 10:2. In the one illustration that the previous speaker gave, he spoke of the United Kingdom arrangements, which are 10:2; and looking at what is going on in common law jurisdictions, the United Kingdom is 10:2, Northern Territory is 10:2, Tasmania is 10:2, South Australia is 10:2, Oregon is 10:2, Hawaii is 10:2, Alaska is 10:2, and so it goes on. I am aware, however, that Victoria has opted for the 11:1 proposals of the New Zealand Government. So on that issue relating to majority verdicts, I would express the hope that the Law and Order Committee will see the merit of a 10:2 proposal.
The second issue, which I judge to be highly controversial, relates to creating exceptions to the double jeopardy principle. I have to say that in respect of the second exception the Government proposes to embark upon, we are in danger of pursuing criminal adventures for all the wrong reasons.
The principle of double jeopardy is straightforward. It is to ensure that no person is retried for an offence of which that person has already been acquitted. This bill proposes two changes to allow two exceptions to that well-understood principle. The first exception is where evidence is tainted through perjury or witness intimidation, and if there are to be exceptions made to the principle, then that is probably an area where an exception is justified.
It is in the area of the second exception that I take strong objection. That second principle concerns the case where strong evidence of guilt is established after a person has been acquitted for an offence punishable by imprisonment for 14 years or more. There are a number of problems with creating that exception. It may, perhaps, be justified on a populist basis. The reality, however, is that the legal system is not a perfect system, and balances in the system have to be constantly sought.
Double jeopardy ensures that the powers and resources of the Crown are not abused, and that prosecutions are brought only where there is clear evidence of wrongdoing against an accused person. To try to justify the exception, the Government has built in a number of protections in the bill. One is when a case has gone to the Court of Appeal, and the Court of Appeal has formed a view that there is compelling evidence of guilt against the accused person. I have a real concern as a lawyer that if that exception is maintained, it will be virtually impossible for an accused person, following that adverse finding of the Court of Appeal, to have a fair trial.
The injustice of it is apparent, because the Court of Appeal does not see and hear the witnesses. The reality of Court of Appeal hearings is that they are conducted on the papers. We will have a situation in which, without seeing or hearing the witnesses and without an opportunity to test the evidence in any real way, an accused person will have to face the prosecution against the background of an adverse determination of guilt or innocence. We need to look at that exception very critically.
DAIL JONES (NZ First) : This bill has a number of very important issues, from the point of view of criminal procedure. New Zealand First will support it to the select committee, but we do have reservations about it. The National Party spokesman for justice set out a number of issues very clearly. He was especially concerned about the second exception relating to compelling new evidence for double jeopardy. We well know that in a criminal case, people often bankrupt themselves to try to defend themselves against charges. If a person has spent all his or her money to defend him or herself based on the evidence produced by the Crown, and then the Crown says, later on, that it has some new evidence and it wants to go through all that again, that person has no money, and while he or she might get legal aid, he or she might not get the lawyer he or she really wants and might not be able to afford the lawyer who got the person off on the first occasion. So there are problems with the double jeopardy principle, and it will be interesting to see what happens in the select committee.
I had hoped that the bill might go to the Justice and Electoral Committee, because there are a number of complicated legal issues involved. Perhaps a Labour member might comment on that possibility.
The area about which New Zealand First is greatly concerned and has objection to is Part 5. The trouble we have today with legislation is that the law drafter is ordered by the Government to throw a lot of issues together, and they all get put in one part, even though one might agree with some and disagree with others. If the areas to which I will refer are not removed from Part 5, then we may have to vote against Part 5 as a whole, but we will look at that situation after hearing the evidence in the select committee.
The area about which we are particularly concerned is the one relating to preliminary hearings. The Government intends to abolish preliminary hearings. The only justification it can come up with is a statement by the Law Commission that found that the main purpose of preliminary hearings—to act as a filter for unmeritorious cases—was not being served, because the lay justices of the peace before whom they are usually held may feel unqualified to put an end to a case.
I have appeared in preliminary hearings, or “deposition hearings” as we lawyers call them, and I have never had the difficulty, in a deserving case, of having the matter struck out by a justice of the peace on the basis that there is no case to answer. I do not accept the Law Commission’s view. I believe that preliminary hearings must continue as they are today. That is my personal view, and I will be looking at the submitters’ views with interest to see whether people who practice at the bar share the view of the Law Commission. I wonder how many members of the Law Commission have actually appeared in a District Court on deposition hearings.
I remember when I got back into practice in 1984 one of my first cases was to have an indictable offence thrown out because of poor evidence against a couple of clients. I have had a deposition hearing tossed out on an arson case, where the police had called out the armed offenders squad, so the witnesses were the police, yet the JPs had no difficulty in throwing out that particular charge. I believe there is a strong place and a strong case for deposition hearings to continue.
If a lawyer tries to defend a case at the deposition hearing and has it tossed out, that saves the Crown a lot of money. It prevents having a lengthy jury trial with a judge—possibly a judge of the High Court—it prevents having to call in 12 jurors, and it prevents the case taking the weeks that a jury trial can take. In deposition hearings that are obviously cut and dried, and where there is a case to answer, on today’s basis most lawyers will hand up the charges and evidence, and that is the end of it.
But lawyers may want to check out a witness at a deposition hearing, and it is a useful forum to see whether the Crown’s witnesses really stack up and whether the evidence stacks up. It is often useful for the prosecutor to find out whether the prosecution witnesses can stand the pace of a High Court hearing or a District Court jury trial hearing. So I think for the Crown to dismiss preliminary hearings in the way in which it has in this legislation is an adverse effect of it, and that the matter should be reconsidered. I would have thought that perhaps the Justice and Electoral Committee would be the committee that would best understand what is involved here.
There is clause 88, “Defendant’s right to elect trial by jury where offence punishable by more than 3 months’ imprisonment”. Today, when the defendant goes in the box and fails to enter a plea of “Guilty” or “Not guilty” and how he or she wants to be tried, usually the Crown has to go ahead with trial by jury. Here, the whole situation has been reversed from what has been the norm for many years in New Zealand. I will be interested to see what happens with regard to clause 88.
Another issue is Part 5A, “Special provisions relating to standard committal process and committal hearings in cases of sexual nature”. This provision is inserted by clause 92, which is in Part 5. It is an area that we might not oppose, depending on the evidence, but on the face of it, it goes entirely against all the principles of New Zealand justice. It provides that a complainant must not be examined or cross-examined on a statement provided at a committal hearing.
There are all sorts of protections given to complainants these days. So often the evidence, when it comes under scrutiny, falls apart—which is a reason for a pre-trial or deposition hearing. To have a complainant go to a deposition hearing and, through a standard committal process, make a statement without any degree of examination—not even by the prosecutor, let alone by the defence counsel—means that we are going down a dangerous path. Again, as I said, we are talking about the committal process only, and I will be interested to hear what submitters have to say on that aspect.
My colleague Mr Brown, the deputy leader of New Zealand First, will be seeking a call on that in order to speak on an issue that is close to his heart. At this stage New Zealand First supports this bill to the select committee, although we have grave reservations about Part 5.
NANDOR TANCZOS (Green) : Last night the Green Party split its vote on the Parole (Extended Supervision) and Sentencing Amendment Bill because while we had strong concerns over the New Zealand Bill of Rights Act implications of that bill, most of us felt that the infringement of the New Zealand Bill of Rights Act was justifiable. There was clear evidence of an immediate problem that was quantifiable and there was compelling reason for change in terms of the significance of the problem that the bill was trying to address. I mention that bill only as a comparison with the current bill that we are looking at, because in this case I do not think we can see clear evidence of a current problem that needs to be addressed in urgency. Nor do I think we see evidence of the kind of seriousness of the problem that can be compared at all, so because of that, the Green Party will not be supporting this bill through the first reading. That does not mean that we may not be able to support it at a later stage if significant amendments can be made to it, but certainly we do not feel able to support it at this point, because we do not think the evidence is there.
This is an omnibus bill. Of course there are a number of provisions—
Dail Jones: What is it that you are opposing?
NANDOR TANCZOS: The bill.
Dail Jones: Entirely?
NANDOR TANCZOS: That is what my speech is about to outline. The member is quite right—this is an omnibus bill; there are a number of provisions in it, and many of them are actually very good. We support many of these provisions and it is unfortunate that the Government seems to have an increasing tendency to put in omnibus bills, which means there are so many different provisions in there that we are constantly having to weigh up: “Is it so bad, that we cannot support the good stuff?”. That is not a proper way to conduct the business of this House, in our opinion.
The first thing I will speak about in the specifics of the bill is the double jeopardy aspect because it is a serious issue. Unlike the Parole (Extended Supervision) and Sentencing Amendment Bill that we discussed last night, which some claimed comprised double jeopardy but could be seen not so much as double jeopardy but more in the nature of a double punishment, what we are seeing with this bill is quite clearly actual double jeopardy—that is, people who have been acquitted in a court of an offence are being retried for the same offence.
Now there is a case to be made in some way and we have some sympathy for some of the things the bill is trying to achieve in this regard. The bill creates two exceptions to the double jeopardy rule. The first one is where someone was acquitted because of committing an administration of justice offence such as perjury or intimidating a witness. And we do have some sympathy for that point of view, if it is clear that someone was acquitted because that person threatened a juror, for example, and that led to a false verdict. That is a problem and does need to be addressed. We looked at whether there were other ways of addressing that problem: should we strengthen the perjury provisions, for example?
Of course, it is not possible to come at all of the cases in that way, because, first of all, many of the offences committed to get the acquittal would not have been committed by the person on trial. These offences would have been committed by friends or associates, and prosecuting someone for perjury does not necessarily address the problem of the wrongful acquittal, The other thing, of course, is that if someone is acquitted of a murder charge, to use the perjury laws to get at that person the offender will have to be sentenced to the kind of sentence that he or she would have received had he or she been found guilty of murder. What we are then doing is effectively sentencing such offenders for something that they have not been proven guilty of, and that would be even more improper. So we cannot get at it that way, and we do have some sympathy with that part of the double jeopardy rule.
We have more concerns with the second part where reference is made to compelling new evidence becoming available. We have to accept that technology moves on. It may be that in 5 years’ time some amazing new technology is developed that was not available at the time of the case, and it is able to prove that someone was guilty of the offence, but this provision is not limited to new technology. This provision is actually quite broad in the sense that it contains few safeguards. It just talks about “fresh and compelling evidence”. Well, what does that actually mean? I think Mr Goff has tried to take some of the concerns seriously and has tried to put some safeguards around it. There is going to be only one trial, the Solicitor-General must consent to police reinvestigation, and then they seek leave to the Court of Appeal to reopen the case.
The Court of Appeal must then decide that there is compelling new evidence, and Mr Goff says that the evidence must be unable to have been discovered with the exercise of due diligence. So I think that is an attempt to put in safeguards; nevertheless, the Green Party does not believe that they are adequate to safeguard against the problem that the bill provides a strong incentive for the manufacture of evidence if someone has been committed of an offence. It is not a theoretical thing. We cannot say: “Oh, the New Zealand Police never do this.” Most officers never do that, but we have examples in the history of this country where evidence has been manufactured, and we have to take that seriously. In the opinion of the Greens we would be wrong as a Parliament to create incentives for the manufacture of evidence.
The other thing is that there is no evidence that this is a compelling problem. Where is the evidence that people are being acquitted on the basis of these things and that we have such a problem with it that a law needs to be passed that contravenes the longstanding principle against double jeopardy? In our opinion the evidence is just not there.
The other thing I would like to talk about that was also very strongly opposed in our caucus is some of the provisions around jury trials. Some of the provisions are actually very good. Some of them simply relate to making juries more effective. For example, we strongly support things like increasing jury district boundaries, increased penalties for failing to answer a jury summons, and provisions to defer service for up to 12 months. I have been called up for jury service twice in my life, once during my university exams and once a couple of days after I had been elected as a member of Parliament. I was quite disappointed because I would have enjoyed doing the jury service.
Hon Ken Shirley: Not eligible.
NANDOR TANCZOS: Exactly, not eligible. I saw it as a responsibility as a citizen of Aotearoa to do that. It would have been extremely interesting and informative to take part. When I was doing my exams I would have liked to defer my jury service so that when my exams were finished I could have done it at a later time, but that was not possible. So I think it is good that people can defer service. It is an offence to prejudice an employee by reason of that person’s absence on jury service. The other thing we think is extremely good is allowing the prosecution and defence expert evidence to be heard in sequence where that would better assist jurors to understand the case, so that jurors do not have to follow an extremely complex argument through to the completion of all the evidence, then hear the other side, with the serious possibility of becoming confused about what point was what, and so on.
So there are a number of good things in the bill, but we strongly oppose, first of all, the move to majority verdicts. Notwithstanding the lengthy list of mostly American states that Mr Richard Worth read to the House, we think that majority verdicts will lead to quicker, but not necessarily better, justice. Now when one juror has a strong reservation about a guilty verdict, the jury has to listen to that person, work through the issues, and either convince that person of the correctness of a guilty verdict, or it may well be, and it does happen—and there is experience of this in our caucus—that a single juror says that it is not right, that there is something wrong, and manages to bring around a majority of the jurors to conclude that a not guilty verdict would be appropriate.
There is no incentive to do that with majority verdicts. The majority of the jury will just go: “Oh well, we will wait 4 hours, then it is all over. We don’t have to listen to you.” The Greens think that that is a bad move and we do not think we should go that way at all.
The other thing we are extremely concerned about is the ability to have trial by judge alone, in long and complex cases and where there is evidence of jury intimidation. Jury intimidation is when there is evidence that there is, has been, or may be, jury intimidation. That is extremely broad. We think that this issue is a real problem and that this is not the way to deal with it. We think the changes to depositions are something we should support. So overall it is a mix of things. It is unfortunate that we have to oppose the good things because of the things we do not support, but we will not be supporting this bill through its first reading.
Hon KEN SHIRLEY (ACT) : The ACT party will be supporting the Criminal Procedure Bill. However, the first observation I would make is to ask why we are debating this bill under urgency. There is nothing urgent about it. It has some relatively minor and quite significant points, but it could have been dealt with in the normal procedure of the House. I also observe that the Government pulled the plug early yesterday for the lunch break in urgency. It could not go through to 1 o’clock, because it did not have enough on the agenda. Last night it tried to pull the plug early, at about a quarter past 11, but the ACT party denied it leave to do that. If the Government is to put the House into urgency, it should do so because it is serious and it actually has a backlog of urgent matters that need to be cleared. Clearly, the Government is in disarray in terms of its procedures. It brings matters of minor consequence to the House and then throws them into urgency, for no good reason. That is just bad management by Government.
The other observation I would make in relation to this bill—and it has already been made, but I reinforce the point—is that Part 5 has a wide range of ad hoc matters, some of which are reasonable, but others are quite unpalatable. The point is that there has been a tendency in drafting, particularly with this Government, to group and amalgamate a whole range of matters into one part, and then under urgency debate the bill part by part to try to save time. I believe that that truncates the right and obligation of the Parliament to debate those issues, many of which are stand-alone issues that should not be amalgamated in that way. Perhaps the reason this Government is ramming this stuff through in urgency is that it does not want to stand up to the scrutiny of those detailed matters.
The ACT party certainly does have concern with the proposal to replace unanimous jury verdicts with majority verdicts. We believe that that could well erode safeguards against wrongful convictions. We welcome some of the changes, but others could well erode key rights that protect defendants, if the establishment decided to gang up on them—and regrettably, it does.
Judith Collins: Like Nick Smith.
Hon KEN SHIRLEY: That may well be a case in point. Often the establishment does want to protect its patch, and it will gang up. There are some disgraceful examples where the establishment has ganged up. That is the point of having jury trials where peers can stand in judgment, and the establishment can be exposed if it is colluding and ganging up in the way in which it presents the case for the prosecution.
The other concern—and it runs in parallel—is the prosecution’s ability to get a judge-alone trial, instead of a jury trial, by alleging a threat of intimidation; this is the mechanism the Crown can use, and it is an ability that could well be misused. That is the concern. The establishment could well push for a judge-alone trial, bypassing that judgment by the peer group, which goes to the very foundation of our justice system.
The issue has been raised with regard to intimidation. On many occasions in this House the Minister has given the example of the person who literally got away with murder on the basis of intimidation. But there are other ways that we could have dealt with that. One good way would be to make the penalty so severe that it is simply not worth it. The risk would outweigh any benefit associated with that sort of behaviour.
If the Minister of Justice, Phil Goff, were truly serious about dealing to offenders who corrupt justice, he would have to get rid of the so-called right to silence that lets criminals make their lawyers peddle fanciful theories and they are safe from being cross-examined. We put to the Minister of Justice, Mr Goff, that if he were truly serious he would do away with the provision that allows a defender to declare silence and then his or her lawyer just puts up a whole range of fanciful scenarios—knowingly fanciful, in the knowledge that in those circumstances a defender cannot be cross-examined on the veracity of the issues being put up.
The risk with majority verdicts is worth running. In complex and lengthy cases, and where the prosecution alleges threatened intimidation, the end to the right to a jury trial will be tempting for justice authorities where they think that a jury might refuse to convict. Jury trials have been a safeguard with unpopular law, or where the jury thinks the Government is abusing prosecution powers. Those possibilities are justification for protecting the ancient right to a trial by one’s peers.
I have expressed a number of concerns the ACT party has with this legislation. However, we are prepared to see it proceed to a select committee where we hope that full scrutiny will be given.
MURRAY SMITH (United Future) : It may come as a surprise to members to learn that the New Zealand legal system is not founded on the pursuit of truth. In other words, the New Zealand legal system is not founded on the necessity for our courts to determine, as far as they can, whether a person actually committed a crime, before determining what punishment, if any, is appropriate; or in a civil dispute, everything relevant that happened between the parties, before deciding who is in the right. Whether people are surprised by that statement depends on how close an involvement they have had with our courts. The statement will not surprise lawyers, judges, and most people who have been required to participate in our justice system. Those who earn their living from participation in the courts system are well aware that the discovery of truth is no more than a hopeful by-product of the justice system, and not central to it.
Many New Zealanders who have appeared before courts, either as defendants in criminal or civil cases, or in seeking to obtain the assistance of the court to enforce their rights, have come away frustrated and disillusioned at the inadequacies of the court system, solely because they had an expectation that the court would make a decision that was based on the truth. But instead, they have found that that decision has been based on half-truths, impressions, sympathies, and above all else, a rigid adherence to the semantics of legislative wording.
On 3 August 1994, TV3 aired a documentary in its Inside New Zealand series that looked at the criminal jurisdiction of the District Courts. In the course of the programme the then Chief District Court Judge, and now Ombudsman, Anand Satyanand, stated: “It is not my role to discover the truth.” Rather, he said that the judge’s role was to consider the evidence that was placed in front of him or her and decide whether the evidence was sufficient to prove the commission of an offence, in terms of a strict analysis of the wording of the relevant statute.
In other words, the dispensing of justice in the criminal court system is a technical exercise in which the prosecution is required to prove each ingredient of an offence and the defence counsel role is, in essence, to show that the prosecution has failed to do so. For that reason no one is ever found innocent—that is, found that he or she did not commit a crime. He or she is found not guilty. This is an important difference. “Not guilty” means that whether he or she did it or not, guilt has not been proven.
Accordingly, in the very first criminal case that I was involved in as a defence lawyer, my client was accused of hunting without a licence. The regional authority that was prosecuting him overlooked presenting evidence to the court that the land on which my client was found with his gun was public land—an essential ingredient of the offence. I moved for the charge to be struck out on the basis that an essential ingredient had not been proven. That was granted, and my client was free, irrespective of whether he had actually hunted without a licence.
Accordingly, it is quite consistent within our adversarial system for a person to be acquitted of a crime, even though he actually “did it”. In fact, the concept of “did it” suggests that he was guilty of committing a crime, and he is not guilty unless the police can prove he “did it”. If they cannot, he is “not guilty” and is acquitted—that is, freed or released from charge. As I said, our system never declares a person innocent.
So when we come to this bill, we see that the Government is tinkering with a criminal justice system that has much more fundamental problems. In our criminal justice system, everybody has the goal of seeing people who commit crimes getting convicted, and people who are wrongly accused getting acquitted; also, they want the system to run efficiently, both in terms of time and cost. This bill seeks to make some adjustments to our flawed system in order to try to improve those things.
In terms of juries, the bill addresses the problems we have of a reluctance of people to serve as jurors and also the problem of the rogue juror—the one in 12 who, for whatever reason, apparent or hidden, will not agree with the other 11. Chiefly, in that regard, the bill provides for majority verdicts, for dispensing with jurors in cases of complexity, for increasing the catchment area for jurors, for increasing penalties for jurors who do not turn up, for allowing jurors to go home at night during trials, and for allowing jurors to defer jury service. Those things are mostly non-contentious. The dispensing of jurors is a contentious point, but, as I said, the Government is really just tinkering in that sort of area.
With regard to deposition hearings, the bill provides for a speeding up of the trial process and for a freeing up of court time. Deposition hearings will be conducted on the papers instead of having the current situation whereby oral evidence is presented, unless a judge agrees otherwise. Currently, depositions serve as a bit of a test run as to the reliability of the Crown evidence, and that goes back to the fundamental comment I made, that a person is entitled to an acquittal if the police cannot prove he or she “did it”—whether it actually happened or not.
However, defence counsel have at times found that the presentation of oral evidence—in particular, the ability to cross-examine intended Crown witnesses—has revealed information that should have been disclosed by the police but was not. For example, I have been cited a case where a defence attorney said to the Crown’s witness: “What did you do next?”, and he said: “Well, I made some notes and gave them to the police.” The question has then been: “What notes?”, because the police have not disclosed what was absolutely critical information in terms of notes made at the time. So that has been an area where oral evidence has managed to serve to elicit factual information that should have been disclosed to the police.
The bill does provide some help for the defence in that regard. However, under the bill the police will have to disclose all relevant evidence. At present the police have to disclose only what they are asked for, and it is actually a technical and key exercise for defence counsel to make sure that they provide a broad request to the police so that the police actually give them everything relevant to the case.
However, there are still times known where the police have conveniently lost, or simply denied the existence of, evidence that is later proved to exist. Therefore, at least a compulsion on the police to disclose all evidence, although that will add to a lot of time and cost on the part of the police, will, to some extent, redress what we are taking away from the defence in the area of oral depositions.
The area of double jeopardy has been dwelt on already by previous speakers. Certainly, in terms of tainted acquittals, United Future is happy that if a person corrupts the system, he or she should not benefit from having done so; and it is legitimate to look at a situation of retrying the process because of the corruption that has been demonstrated to have occurred. The “subsequent evidence” rule, however, is problematic, and we have some real doubts about that. But we are happy and willing to listen to the submissions that come, and we will do that with interest before we make a final decision in that regard.
I come back to the point, that we really need to look at the root causes of our justice system, and in particular at the whole adversarial system we have constructed. United Future believes—and I in particular believe—that we need to move more towards an inquisitorial type of system, as we have already done in terms of inquiries, tribunals, and even Family Courts. The Care of Children Bill is a case in point.
There are three effective things I think we can do in order to move towards that. First, we should make establishing the truth a priority of both judges and courts—refocusing the judges, and thereby the system, on what they ought to be doing. Secondly, I think we should strengthen judges’ ability to call for evidence to be presented so that judges can, when they see a gap in the evidence, take more positive steps towards ensuring that all the evidence that ought to be presented before the court is presented, in order that they can get to the truth.
Thirdly, I agree with the ACT party—and I am very pleased to see its members supporting what I have been arguing for a number of years—that we should require defendants to give evidence and allow a negative inference to be taken if they do not do so. I think that would dramatically speed up our process. We would have a lot fewer situations whereby defence attorneys run a case, even though their client “did it”, just to see whether the police can actually prove it. There would be a lot less of that happening, saving considerable time and expense.
United Future will support the first reading of this bill and enable the select committee to examine the issues contained in it. However, until we stop tinkering with the system and take a radical look at its fundamentals, we will never get to a stage where we can confidently say that people who commit crimes will invariably be convicted, and that those who are wrongly accused will invariably be acquitted.
JUDITH COLLINS (National—Clevedon) : The National Party will support this bill through to the select committee. However, we understand that the Government wants to send it to the Law and Order Committee—am I right, Minister?—rather than to the Justice and Electoral Committee. We are a bit concerned about that, because we believe it should go to the Justice and Electoral Committee. This is an issue of juries and judges. It is absolutely appropriate that the bill go to that committee rather than to the Law and Order Committee, which deals with police issues and things like that. The choice of committee is wrong.
I have an idea how we can get time in the Justice and Electoral Committee to deal with this bill: we will swap this bill for the Civil Union Bill, because if it is appropriate to send the Criminal Procedure Bill through to the Law and Order Committee, then I am sure it is just as appropriate to send it the Civil Union Bill. I can hear “Hear, hear!” all around from members of the select committee—except for Mr Barnett.
Mr Worth has very correctly pointed out that we are quite supportive of having majority verdicts in jury trials. We are concerned to make sure that people do not nobble juries—that juries do not have a rogue element that will not be convinced either way and simply not look at the issues. But I am confidently assured by many of the people who practise in the criminal law area—as lawyers, hopefully, not as criminals—that the ability of juries to look through all the gloss, the spin, and everything else and at the substance of what they are hearing is often underrated.
I think that we in New Zealand perhaps underrate juries significantly, and to our peril. In most cases, people come to juries wondering what they will find and what will come from the experience. They are very concerned to do the right thing. I have been told by those who are involved in this area that juries invariably come to the right decision, and that they take their roles very seriously.
I note the comment made by the Green Party member, who said he had two examples of when he could have been on juries, but that examinations and his coming into Parliament unfortunately prevented him from doing so. I think that jury service must be very much like a conscience issue in Parliament, where everyone is trying to do the right thing according to what they think is right, and not according to any party line. We do underestimate the role of juries and their abilities in most cases to come to a verdict.
Mr Worth pointed out that there has been a substantial increase in the number of hung juries, and that is perhaps something to do with the fact that police resourcing is not as good as it should be, that there is a genuine concern that the police are not always producing the right standard of forensic work, and that there is some sort of concern in the community that the police are not as highly valued and viewed as they once were. There has been a general downgrading of police morale, and perhaps that can be seen in what happens with these verdicts.
We understand that there is a concern over gang-related crime. I can recall at least one crime that occurred in Taranaki where a person literally got away with murder because of intimidation of witnesses and a jury. Of course, that one instance does not mean to say that this happens all the time, so therefore we need to tread very, very carefully with that issue.
We are concerned about the double-jeopardy provisions in the bill, as Mr Worth said. We are particularly concerned with the second exception. In relation to the second exception, the explanatory note states:“… compelling new evidence. It will apply to persons previously acquitted of very serious criminal offences if reliable evidence is subsequently discovered that was not available at the time of the first trial and indicates with a high degree of probability that the person is in fact guilty.” That says to me that if anyone is prosecuted using this exception any jury or judge will know from the start of the prosecution that there is reliable evidence, and a judgment has already been made that the evidence is reliable, which is a judgment that is best made by the jury. So that judgment is being taken away from the jury.
The second thing is the fact that the bill states: “… indicates with a high degree of probability that the person is in fact guilty.” So a judgment is already being made before the jury gets to look at it. The jury is placed in the position of looking at this instance and saying: “If I don’t think this person is guilty, clearly I am wrong.” I can see this as a State-sanctioned form of jury tampering—in fact, a bullying of the jury into not going with its own reactions and feelings on what it is seeing. For instance, if jury members see a prosecution witness giving evidence, and in their opinion the person is telling a barefaced lie, under this sort of provision people would be saying to themselves: “Perhaps I’ve got it wrong. Perhaps that person is not telling a barefaced lie. Perhaps the body language does not indicate that.”, when the jury member should rightly be going with his or her own feelings on the matter.
Another comment in the explanatory note states: “The basis for the compelling new evidence exception is the importance in the interests of justice (and particularly victims’ interests) of achieving factually correct verdicts in very serious cases...”. Those of us who have been around the legal profession for a long time know that there are at least as many sides to a story as there are people to tell it. What is a fact is very much a subjective matter, because it depends very much on how someone sees it. We have consistently shown over the years that the evidence of people identifying someone from a particular crime scene, or saying: “I know that that was the person. I saw him or her”, is incredibly unreliable. After a period of time, most people do not remember quite what they think they saw, and that is something we need to be very careful about. That is where DNA testing has been able to really improve the situation.
In essence, I am pleased to be able to support this bill through to a select committee. I make a last-minute plea to have this bill transferred to the Justice and Electoral Committee—in my opinion, the appropriate committee to examine this bill—and that the issues the National Party has raised are taken into account in a serious way.
PETER BROWN (Deputy Leader—NZ First) : I apologise for being a little slow to my feet, but I expected a Government member to get to his or her feet. It disappoints me that on a bill that has so much meat in it, we have had only one contribution from a Government member—the Minister. As my colleague made clear earlier, New Zealand First will support this bill to select committee. We believe that there is some good stuff in this bill that, at the very least, needs to be aired in public and to receive public submissions. Having said that, the Minister has the wrong select committee. I agree totally with my colleague Dail Jones that this bill should go to the Justice and Electoral Committee, not to the Law and Order Committee. This is a technical bill about law, and it should more appropriately be put before the Justice and Electoral Committee. I sometimes wonder how the Government makes its decisions along those lines.
I also agree with my colleague, as do all New Zealand First MPs, who expressed concerns about the abolishment of deposition hearings. I am not a lawyer, but I realise—certainly after listening to Dail Jones in caucus in particular—that they play a very prominent and significant part in a fair criminal trial procedure. We have major jury reservations about that. I tend to agree with the Hon Richard Worth, who said that a majority verdict would be better if it was 10:2, rather than 11:1. We are following the British very much in this bill, and my understanding is that the British have gone to a majority jury verdict of 10:2, as against 11:1. That is my personal view, but, again, I welcome that issue being addressed by the select committee.
There are certain elements in this bill that really please me no end, and I think my colleague alluded to them earlier. There are three areas of concern to me—two are included in the bill, but I cannot find one of them. I have had an interest in British justice for quite some time and have been following it through newspapers and the Internet. After the completion of the Commonwealth Parliamentary Association conference last year I took a week’s leave and spoke with justice officials in the UK about various aspects of law and order that the British were looking at. One issue the British were looking at was the exception to double jeopardy. On my return here I produced a member’s bill, called the Crimes (Criminal Justice) Strengthening Amendment Bill, which addresses that issue and a couple of other issues. I am firmly convinced that the exception to double jeopardy should be introduced. This bill provided for it, as indeed did my member’s bill. It should be introduced for serious crime only. We are not talking about petty thieves or the person who has done something relatively minor. We are talking about people who could get a prison sentence in excess of 14 years. It is serious stuff.
Parliament has an obligation to ensure that people who commit serious crimes are apprehended and do the time. The old saying: “Do the crime; do the time” is appropriate. One of the two areas that would allow for the exception to double jeopardy to click in is “compelling new evidence”. I suggest that basically we are talking about compelling new scientific evidence, such as DNA. It is appropriate to use that evidence, even if the person got off the charge before it was available. Obviously, as Judith Collins stated, it has to be used fairly and honourably, but if we can get compelling new evidence against a person who has committed a serious crime, then the State has an obligation to use it.
Murray Smith referred to corruption of the system—that is, where a juror, a witness, or someone else has been bribed or perjury has been committed. It is only right and proper that that issue is addressed. First of all, of course, the police and the prosecution will have to prove that the person was guilty of perjury. They can then use that evidence against the “main criminal”, for want of a better term. So I am pleased that that is in this bill.
I am also pleased that this bill provides for the full disclosure of evidence, both from the prosecution and to a larger extent from the defence. I am not a lawyer but it appears to me, and I know it appears to many members of the public, that there have been too many people—lawyers and accused people—who get off charges because of what I would term the smart alec use of the law. This legislation, I believe, will go some way towards closing that off. I do not know whether it will do it totally, but I think it will close it off to some significant degree.
A third aspect that is in my bill—but I cannot find it in this bill, although I hope it is there somewhere—is that in certain trials the judge should be able to divulge to the jury the relevant criminal history of an accused. The British are looking at that—in fact, they are introducing it as I understand it, and I think it is appropriate that we bring it in here. I believe that this is a good opportunity to tighten up our justice system and to do our very best to ensure that those who are guilty of crime, particularly serious crime, pay the price. I believe that we have to get it right one time over.
Judith Collins referred to the morale of the police. She implied that the low morale suffered by the police is because of the criminal justice system. That may be true in part, but equally true is the fact that the police are suffering from low morale because far too often far too many of them have to go out on the road and get a quota of guilty motorists, for want of a better term. They have to go out and fine motorists. I know that the police are getting very, very poor feedback from the public. If we are going to tidy up the law, I think we should tidy up that particular area of it. We in New Zealand First believe that traffic duties should be carried out by a separate force, administered by the Land Transport Safety Authority, or whatever.
Hon Judith Tizard: Why did Winston Peters vote to amalgamate the traffic police and the police?
PETER BROWN: The honourable member asks me a question. I was not here at the time, but I can tell her—
Hon Rick Barker: Ask your leader.
PETER BROWN: I am trying to answer the member’s question. I think it is a fair question. If the honourable member did do that—and I am not doubting the member’s word—he was a member of the National Party at the time. But since late last year we have surveyed many people, and we are told that that is the wrong way to go. We want to relook at the issue and split the police from the traffic officers, but it will not be done in this bill. I do not really want to encourage debate on that issue during the debate on this bill.
The point I am making is that this bill tightens up our legal system, and we need to tighten it up fully, including in relation to our concerns about aspects of policing in this country. New Zealand First will support this bill’s referral to the select committee.
|Ayes 109||New Zealand Labour 51; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2.|
|Noes 9||Green Party 9.|
|Bill read a first time, and referred to the Law and Order Committee.|