Courts (Remote Participation) Bill

JACINDA ARDERN (Labour) Link to this

I said before the debate on this bill was interrupted that I would of course return to the House to use my remaining 2 minutes to speak to this bill. The bill essentially allows a widening of the use of video conferencing facilities in our court service—a critical issue of debate. I have to say I would rather have spent my 2 minutes and 30 seconds debating the important matter of mining, but that is how these things go.

I conclude my consideration of this bill by saying that it seems to me that building efficiencies into the court system—and I can only assume that this is part of the Government’s agenda with this bill—is part of the purpose of the use of this new technology. The one warning I offered in the initial part of my contribution was that in the United Kingdom a similar form of technology was used for a pilot programme called Virtual Courts. The idea from the perspective of UK lawmakers was to replace some of the early court proceedings with video conferencing, which meant that prisoners would not have to be transported. The idea was that money would be saved as a consequence. That has not been the outcome of that system for those who introduced it, and they are still working on finding cost savings through that pilot programme. So I issue a word of warning to the Government: if cost saving is the primary purpose of this initiative, it may wish to cost more effectively—because it has not done so in the regulatory impact statement—the savings and the benefits of the system, because it comes at another cost.

We have to be very careful to ensure that we balance out the striving for efficiency gains in our court system, which is under a lot of pressure, with the idea that we do not undermine the very important principle of justice and giving all people their day in court, so to speak. That has been very roughly cast out in this bill, but it has been done through a set of criteria. It strikes me that there is still the ability, even where evidence has been heard in a court case, for a potential defendant not to be present. If that is the case, I think we should be very aware of the fact that there is a balance to be struck, and we will be looking for that balance in the select committee process. Thank you.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Tēnā koe, Mr Assistant Speaker, ā, huri rauna kia ora tātou katoa i te Whare. I do not mind admitting that I am a real fan of using video technology to make things easier to judge, particularly when it comes to sporting endeavour, such as watching the video replays whenever Manu Vatuvei scores for the Warriors, or when Serena Williams wins line calls against just about everybody except her big sister. More than that, I also enjoy watching people scramble for their earpieces whenever I or Te Ururoa decide to throw some ad lib Māori into our speeches in the House, as I will now.

E tautoko ana au i tēnei tikanga kia hāpai ngā rōpū me ngā whānau e tiaki ana i te hunga hauā, e ngā tāngata turi anō hoki, kia taea e rātou te uru ki roto i ngā mahi katoa o tēnei ao. Engari mō tēneki pire, e hoa, he mea anō tēnei nō reira, e tika ana kia tirohia atu ōna pāinga, ōna hē anō hoki. I te taha tautoko anēi wētahi painga.

[I really endorse this business about encouraging groups and families who take care of the disadvantaged and the deaf so that they can become part of the workforce in all manner of work that this world offers. But as far as this bill is concerned, I have to say that it is something else; so it is right that its advantages and disadvantages have to be taken into account very carefully. Here are some positive benefits.]

Apparently, travel costs may be reduced if people can video link rather than appear in person. People may feel safer if hoodlums are video linked from jail, witnesses may feel safer if they can hook in by video, and, apparently, cases can be dealt with in rural areas by video without judges having to travel. But if that is all that the Courts (Remote Participation) Bill has going for it, then that is a pretty high price to pay for what I consider to be another step down the slippery slope towards the denial of fundamental human rights to citizens of this country—and that is what this bill is. Yes, people can say that it is about capacity and efficiency, but what it is really about is telling defendants that somebody else will make a decision about their right to have a day in court and be heard by their peers.

I have never been a great fan of the English judicial system, for obvious reasons, but one thing I do like is its principle that a man must be brought before his accusers, and that any man facing the possible loss of his liberty should have the right to face those who would take that liberty from him. I believe that a decent society should safeguard that right with all the vigour and devotion it would give to safeguarding the rights of its children, its women, its workers, its dogs, and—one day, I pray—even its indigenous peoples. I say all that because court by video would take that away. Court by video is not the sign of a mature society, or indeed of a sophisticated society. It is not the sign of a society that recognises the value of mankind and the rights of man—not at all.

Court by video, in my view, is the coward’s way of dispensing justice. Indeed, it sets justice to one side and denies people their right to a fair trail, for the simple reason that it might save money. Certainly, court by video may improve efficiency, but the exercise of justice through the court system should not be based on models of industrial competence and good organisation. Justice should always be about the rights of all players, both the defendants and the plaintiffs, and it should not be weighted to suit one side or the other.

Court by video will clearly be of no benefit to those who are facing charges under the Crimes Act. Indeed, video will operate against those who face the courts in those circumstances. Court by video gives society the opportunity to stand aside from its decisions, to be one step removed from the tough decisions it has to make, and to be faceless in its sentencing.

I would be willing to bet that the minute we start down this road will be the minute that court decisions, particularly against those facing charges under the Crimes Act, get harsher. It is easier for people to condemn those whom they do not have to look in the eye, and it is easier to act out one’s prejudices when those one is sentencing can be switched off at a television screen as if they were nothing more than an annoying advertisement. I can think of countless cases that I have been involved in when a judge or jury, rather than go through the angst and anxiety of actually hearing from a defendant, would have been happier to deal with a video and make a decision based on that.

We would be extending to our wider society the same kind of brutal, uncaring unreality that exists in the video game world, where we allow our kids, by simply watching that stuff, to abuse, assault, maim, rape, kill, and even massacre in the name of video sport. In exactly the same way that it is also easier to kill by video than in person, I have no doubt that it is easier to send a person to jail or keep them there by video link than in a courtroom, because one will be divorced from the harsh reality of one’s decisions by that video link.

As for that crappy story about prisoners being better off because they can give their evidence from jail, I would say that my experience is that when one is in the same old jail cell, with the same exercise times, the same medical times, the same mail times, and the same food times every single day of the year, a day out to go to court ain’t exactly the hardship that some people might have us believe. Yes, the transport ain’t the best and the scenery ain’t great between “the Mount” and the District Court, and the decor ain’t the flashest down in the cells, but it beats being in jail, believe you me.

I have no doubt that there are people in this House who are keen on this bill. But I also know that the Attorney-General himself, the Government’s very own marshal, opposes it on the righteous grounds that it is bad legislation, that it is in breach of human rights, and that it is a step down the path towards a faceless judicial process, by which Māori, I believe, will be ground up and spat out into jails without even the opportunity of confronting those who sent them away.

I am advised that the Māori Party will be supporting this bill at its first reading to enable everybody to put their views before the select committee, but that we will retain the right to make a separate decision at the bill’s second reading, based on the information we hear at the select committee. I respect that position. I intend to ensure that the party’s votes reflect that position. In the same way that Nikki Kaye opposes her party’s position on mining on Great Barrier Island and Sir Roger Douglas opposed his party’s position on the Mental Health (Compulsory Assessment and Treatment) Amendment bill, I will not be supporting this bill at its first reading, second reading, or third reading. Kia ora.

PAUL QUINN (National) Link to this

I rise to support the Courts (Remote Participation) Bill. I note the comments made by the previous speaker, my friend and colleague Hone Harawira. I respect his position, but I am pleased that his party is supporting the bill at this stage so that it can be referred to a select committee. As I understand it, members of the Opposition are also supporting the bill at its first reading.

It is a fact that the justice system in this country, for a number of reasons, takes far too long to work through its stages. Anything that will improve the delivery of justice by our justice system is, in my view, to be applauded. There is an old saying that justice delayed is justice denied, and there are many examples of people waiting too long for progress to be made in hearings.

All this bill does, in fact, is to drag our court system into the 21st century by allowing the use of audiovisual technology, principally to progress procedural issues in the criminal courts. This technology is used in some aspects of proceedings, particularly in terms of witness testimony.

One aspect of improving our justice system is looking for ways to drive much more efficiency. In fact, we are already doing that. One of the areas, for instance, in which we are doing that is in the use of the courts themselves. We are extending the hours of sitting. The previous administration, if I am correct, introduced the extension of night sittings of courts. That is to be applauded, because we have assets in excess of $700 million sitting on the Ministry of Justice’s books and not being used.

So it makes sense that we use more efficiently the assets and resources that we have available to deliver justice in a proper and effective way so that people can get on with their lives. With those few comments I am happy to support the first reading of this bill.

Hon DAVID PARKER (Labour) Link to this

As has been said by previous speakers on behalf of the Labour Party, we will be supporting the Courts (Remote Participation) Bill. I concur with some of the comments that have been made by the two previous speakers. I agree that there are some imperfections in our justice system. I agree with Mr Quinn that it takes far too long, on average, between arrest and trial in criminal matters. We need to improve processes in that respect. A lot needs to be done to reduce the complexity of trials to ensure that people get a fair trial, and to ensure that the trial takes place not too long after the offence, partly because people languish in prison, if they have not been granted bail, at the cost of the State, during the period between arrest and trial. That is unfair to them, on occasion, and a waste of taxpayers’ resources.

I also agree that civil litigation has become so complex and costly that most litigants now cannot afford to go to the courts to resolve their disputes. Given that one of the reasons we have courts is to provide a mechanism to enable people to resolve their disputes without resorting to non-civil means, such as stand-over tactics or violent disagreements, that situation means that something is wrong with our system.

This bill makes some good changes. It states that audiovisual technology can be used on some occasions, and it sets out some rules on that use. I will refer to some of those rules. When no evidence is being given in a criminal proceeding, the presumption ought to be that the matter can proceed by way of audiovisual links. Those are things such as a bail application or a call-over. An example might be a charge originally presented in court on one day and adjourned to a date a month later, and everyone has agreed that at that month-later date the matter will be referred to a subsequent date for a plea of guilty or for a trial.

Now, at that call-over there really is no point in going to the trouble and expense of having all of the parties present. Where there is no substantive evidence being given and no substantive question being tried by the court, it is perfectly proper that video technology be used on some occasions, and, indeed, that there should be a presumption in favour of its use. Of course, that presumption can be overcome if there are good reasons not to use audiovisual technology in a particular instance.

In respect of civil matters, again the test does not need to be as high as it needs to be in respect of a criminal trial where the substantive charge is being heard. So there is a relatively lighter test in respect of the use of this new technology in civil matters than applies to matters where the substantive criminal charge is being heard, such as a defended hearing or a jury trial where someone is charged with a crime. However, in respect of the substantive criminal trial it is proper that there is no presumption in favour of use of this technology, because there is a lot in what Hone Harawira said: that we ought to give people the opportunity to hear, and be heard, if they are on trial.

The definition of to whom this new law applies is wide. It refers to “any participant in a proceeding”, and a participant in a proceeding can include a defendant or a party to a trial. I would not like to see a system where we were forcing the defendant into a trial process where he or she, or witnesses, did not have a right to be there personally. That protection is afforded by this legislation by setting out criteria for when to allow and when not to allow the use of audiovisual links. Those criteria are set out, firstly, in clause 5; secondly, in respect of criminal proceedings, additional criteria are set out in clause 6. In criminal proceedings the overall consideration is the potential impact of the use of the technology on the right of the defendant to a fair trial. That consideration is at the heart of decisions on whether this technology can be used in criminal proceedings.

On one issue I disagree with one of the speeches that was given by an earlier speaker on behalf of National, and that was in the contribution that Simon Bridges made. Simon Bridges said that he agreed with the use of this technology, but then went on to say that he could see it being extended into more regular use in respect of the substantive trial in a criminal matter. I agreed with him when he said that demeanour does not prove “truth”. Someone can present as a fidgety witness who looks nervous, and a lot of people are understandably nervous when they are in court, even as witnesses, but that fidgetiness or nervousness does not necessarily indicate that the person is lying. Similarly, someone might appear at a trial and have a very calm demeanour, but that calm demeanour does not prove that he or she is telling the truth.

I agree with both of those propositions that Simon Bridges stated. Where I disagree with him is in taking it a step further to suggest we can rely more on audiovisual language, where one does not have the same access to body language and the nuances of people when they are giving evidence, because although demeanour does not prove truth or untruth, it is certainly relevant to the assessment of whether there is truth or untruth. Although demeanour will not always show to the judge or jury whether someone is lying or is to be believed, on occasions it does. The defendant ought to have the ability to have recourse to those occasions, and the judge or jury ought to see those occasions. There are many occasions where a witness is not fidgety or looking nervous in respect of the whole of his or her evidence, but when it comes to the crucial part of the evidence that is being contested and where there may be an untruth being told, or a gilding of the lily in one way or another, the body language changes.

In respect of that sort of situation, it is very important that the witness is there to be seen by everyone: the jury, the judge, and the defendant. The defendant therefore gets the sense that his or her trial is fair. We need only to think of our own experience in Parliament, where we have audiovisual presentations from people at select committees. Although again that is a great facility that saves cost to people, on occasions I think one loses the passion and sincerity of a presentation that one sees when people appear in person in front of the select committee.

Although the Labour Party supports this legislation, we emphasise that we do so on the basis of the protections that are found in the legislation, which have different presumptions in respect of different sorts of processes, so that for a criminal substantive matter where evidence has been called, there is no presumption in favour of the use of this technology. On many occasions in a substantive hearing, the evidence will be inappropriate to be heard in that way.

Having said that, we cannot ban its use in all criminal substantive matters, because there will be occasions when all parties, including the defendant, agree that it is appropriate that the matter be traversed by way of audiovisual evidence. An example might be where there is some professional evidence being given about some theory of a pathologist on how somebody died, or an alternative cause of death being posited, and the witness who has that specialist expertise is overseas.

It could be in everyone’s interest—the Crown because the Crown wants to get to the truth of the matter, and the defendant because the defendant wants to prove his or her innocence—that the evidence of that international expert in this possibly narrow field be available to the court. In practice that may be affordable to the defendant only through the use of audiovisual technology, and it could be very appropriate that it be allowed. This legislation would allow that to happen, by audiovisual link, without creating a presumption that audiovisual evidence can be forced upon a defendant where the demeanour or the truth-telling of the witness is one of the matters at issue, and where the defendant ought not to be forced to accept such evidence.

So for those reasons the Labour Party will be supporting this bill’s referral to the select committee. We think it is an appropriate advance. It will not make much difference to the cost-effectiveness of trials, but it will make a small difference, and it is a step in the right direction. Thank you.

Hon Dr NICK SMITH (Minister for the Environment) Link to this

I move, That the Justice and Electoral Committee consider the Courts (Remote Participation) Bill, that the committee report finally to the House on or before 31 May 2010, and that the committee have the authority to meet at any time while the House is sitting (except during oral questions), and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).