Criminal Procedure Bill

Hon RICK BARKER (Minister for Courts) Link to this

I move, That the Criminal Procedure Bill be now read a second time. The Criminal Procedure Bill has been reported back from the Law and Order Committee, which recommended that it be passed with amendment. I thank the committee for its careful consideration of the bill. The bill reforms criminal procedures relating to juries, double jeopardy, pre-trial disclosure, and preliminary hearings. It makes minor amendments to other areas of criminal law. These reforms will improve public confidence in the criminal justice system by making it more efficient and fair.

I now turn to the important changes to our jury system. After enactment, a judge may order a trial to take place without a jury, where the trial is likely to be long and complex or where there is evidence of jury intimidation. The Law Commission’s report on juries concluded that juries had difficulties in coping with long and complex trials, that it is difficult for some jurors to be away from their families and businesses, and that sometimes jurors become confused with lengthy evidence and complex legal issues. The Law Commission did not conclude that jurors have short attention spans or are not smart enough; nor did the Government or the committee. However, to emphasise its conclusion, the committee reworded the provision referring to jurors’ ability to understand complex issues as one of the factors to be considered when a judge exercises such an order. Instead, it now refers to “the nature of the issues likely to be involved”. This is an excellent clarification.

This new limit to the general right to a jury trial applies only to offences punishable by less than 14 years’ imprisonment. Offenders who face higher penalties will remain entitled to be tried by a jury unless there is evidence of jury intimidation. It would not make sense if jury intimidation in serious cases could not lead to a judge-alone trial, but in less serious cases it could. In future a judge could order that a trial take place without a jury if there were reasonable grounds to believe that intimidation of a juror could occur and that the intimidation could be avoided by a trial without a jury. The committee recommended giving the accused the right to apply for a judge-alone trial, so any juror intimidation, whether it is for the purposes of convicting or acquitting the accused, is covered.

The second issue is the significant move to majority verdicts as proposed by the Law Commission in its report on juries. The committee concluded that majority verdicts uphold public confidence by making bribery or intimidation of jurors more difficult and did not recommend amendments to this initiative. The longstanding double jeopardy rule provides that no one who has been tried for an offence may be tried or punished for it again. Submitters objected to changing the rule as a matter of principle. The proposed tainted acquittal exception to the rule applies to persons who escaped probable conviction by committing administration of justice offences, like perjury. Some submitters saw the tainted acquittal exception as an overreaction. Others thought that a better response to such abuses is to increase the penalties for administration of justice offences. The committee concluded that the law must respond to the changing social values and that increasing administration of justice penalties was a flawed approach. The committee did not recommend amendments.

The new and compelling evidence exception will secure factual accuracy in the prosecution process and enhance public confidence in the justice system. New technologies have made the possibility of discovering new and compelling evidence after a trial more likely. Despite the Attorney-General’s view that this exception was not justified under the New Zealand Bill of Rights Act, the committee concluded, as did the Government, that the proposal is a principled balancing of the competing interests of finality and of justice. When new evidence emerges after an acquittal that undermines its legitimacy, it is in the interests of justice to retry the acquitted person, particularly in respect of the most serious offences.

The bill establishes a criminal disclosure regime, requiring initial then full disclosure by the prosecution, disclosure of certain information by the defence, and disclosure in certain circumstances by third party. The bill proposes that initial prosecution disclosure be triggered at the start of criminal proceedings and involves a mandatory disclosure of initial information and further information on request by the accused. The committee, believing that the proposal could prejudice an accused by excluding information, extended the list of additional information that the defendant may request. The committee also recommended that a defendant should receive a summary of his or her right to apply for further information before a plea is entered. The bill limits defence disclosure to alibi and expert witness evidence. The committee considered the time frame for producing the notice of an alibi as unrealistic. People facing indictable charges may not have received legal advice in the time allowed. The bill now provides for more time for producing the alibi notice.

This bill reforms the preliminary hearings. These pre-trial hearings enable the Crown’s evidence to be examined before committing a defendant for trial by jury. The bill limits oral preliminary hearings and moves indictable criminal cases to trial on the basis of written statements, unless the District Court orders an oral hearing. Preliminary hearings will be used in cases where the defence applies to examine the witness orally. The proposal retains the ability for the defence to apply to test the prosecution’s evidence, particularly the oral examination of witnesses who have not provided signed written statements. This ensures that the prosecution can present evidence to deal with applications for discharge. The court may hear oral evidence on its own motion.

The committee did not consider that the media should have automatic access to written statements and records of oral evidence, noting that such uses of such statements are, at this stage, untested. The committee recommended staying with the status quo. This enables the court to suppress details of certain proceedings, excluding the public in certain circumstances from the courtroom, and provide access by the media to written statements where allowed by court rules.

The committee made useful minor recommendations to improve the efficiency of our courts. These include repealing the requirement of the Court of Appeal to deliver single judgments, giving the District Court jurisdiction to try all indictable offences except those listed in the schedule, and providing the changes to the lists of indictable offences trialable in either the District Court or the High Court may be made by an Order in Council.

The Criminal Procedure Bill amends many Acts. However, it has a single policy goal—to maximise efficiency and fairness of our criminal justice system. I commend the bill to the House.

SIMON POWER (National—Rangitikei) Link to this

I thank the Minister for his introduction on the Criminal Procedure Bill. National will be supporting this bill through its second reading, although during the Committee of the whole House we will table amendments to some matters in the bill that we consider to be of grave concern. Chester Borrows and Kate Wilkinson will cover those in more detail during the course of the second reading debate and I will allude to them in my introductory remarks.

What this bill does is worth supporting through the second reading, but we should not underestimate how significant the changes proposed by this bill are to the criminal justice system. It is easy for a Minister to rise to his feet and simply read off the briefing notes that have been prepared by his officials. I am sure that the Hon Rick Barker, who I know takes these things pretty seriously, will be aware of just how significant some of the changes are. Many of the matters contained in this bill will alter principles of criminal law that are older than this Parliament by some quite considerable time frame. There are major changes in this legislation to the way courts will do business.

To paraphrase part of the Minister’s opening remarks, he referred to “speedier, less cluttered justice”. Well, speedier justice is not necessarily better justice, and although jurors may find matters complicated and lengthy—and I note that the Minister said, with some care, that he did not believe that jurors were not capable of digesting material in complex trials, and I would certainly agree with him on that—the point is that the jury system is the best system in the world for determining the outcome of a trial. The fairest way to be judged by one’s peers is to have evidence under cross-examination, under the traditional adversarial approach, put before a jury. Actually, most New Zealanders are tolerant, fair-minded, smart people who, when serving on juries, generally get it right.

I want to draw two matters to the Minister’s attention. I, personally, and others in the National caucus, have real concerns around changes and exceptions to the rule of double jeopardy. This legislation is a major departure from the historic way in which trials have been conducted. Although the National caucus has some sympathy for the view that new DNA evidence—which is as close to perfect evidence as could be tabled or presented in a trial—is worth some consideration post-trial, this party will need to be convinced that that will not open the door to a whole series of other types of evidence that may miraculously appear once a jury acquits an individual alleged to have committed a particular crime. For example, will we see handfuls of shell cases miraculously appearing at crime scenes after trials have concluded and defendants have been acquitted? Would that, of itself, be enough evidence to create an exception to the double jeopardy rule?

All I am saying at this stage, I tell the Minister, is that National will support this bill going through its second reading, but during the Committee stage we will be tabling amendments to try to clarify that rule and we will be asking for a genuine debate from the Minister during the course of that process. We will be considering our position on the third reading based on whether we can have a constructive discussion during the Committee stage around that rule. Kate Wilkinson will talk about National’s concerns around exceptions to the rule of double jeopardy when she makes her contribution later in this second reading debate.

Chester Borrows in his contribution will talk about the abolition of oral preliminary hearings. Although members on this side of the House understand that it is useful and speedy to move along those preliminary hearings in a way that creates a more speedy and accessible justice system, the fact remains—and Mr Borrows is far more of an expert on this matter than I am—that those preliminary oral hearings often throw things up that could make the difference to the way a trial is undertaken. Those initial oral hearings can make a difference to the way a defendant pleads and can change a plea. We need to be careful, because on the one hand we are saying there should be an exception to the double jeopardy rule if new evidence comes about, and on the other hand the bill is saying those preliminary hearings will be narrowed, so that we would not have all the evidence we would formerly have had put before us in the early stages of a trial. That is a conundrum the National Party quite genuinely wants to see resolved or, at least, tidied up during the Committee stage, before it commits to a third reading.

Although National is generally supportive of making the justice system more efficient, as a party we would be concerned if that meant the scales were tipped too far in one or the other direction in the dispensation of justice. This bill will require some time at the Committee stage. National notes that there are six parts to the bill, together with clause 1, “Title”, and clause 2, “Commencement”. We will be looking for a genuine debate at the Committee stage, and I believe Rick Barker to be the sort of person who will engage in a genuine debate during the course of that Committee stage.

Having said all that, I say that National has grave concerns. National does support trial by judge alone in exceptional circumstances, particularly for cases such as complex fraud, and we do support—as we did as part of our election policy—11:1 majority verdicts. We noted in the minority report our concern that that might lead to even more hung juries. Frankly, if that is what justice throws up, then that will be the price for the Crown not having prepared cases in a way that convinces juries that a definite outcome has been reached.

So in conclusion I signal again that National will be supporting the second reading. I signal to the Minister that there will be amendments from National members in the area of preliminary hearings and double jeopardy exceptions. We will come to that Committee stage with an open mind, leading into the third reading, and we welcome that Committee stage debate where the lawyers in our caucus will certainly be participating in a way that they can be convinced. As I understand it—and I stand to be corrected—contrary to the advice the Law Society gave to the select committee on those issues, the committee pressed ahead regardless.

So that is where we stand. Chester Borrows and Kate Wilkinson will make more detailed submissions on those two issues I have raised when they make their contribution in the debate, and we look forward to a constructive Committee stage.

CHESTER BORROWS (National—Whanganui) Link to this

I rise to speak in respect of the Criminal Procedure Bill. I will carry on from where my colleague left off, and speak specifically on the issues around preliminary hearings. The reason preliminary hearings become important is that they were initially introduced for one reason but have moved on to be used for a number of other things. I guess that is the case with a lot of legislation that enters the House.

They were initially introduced for the prosecution to prove a prima facie case—that on the face of it there is enough evidence in the hands of the prosecution to cause someone to be charged, and to have the case heard before a judge and by a jury. Those preliminary hearings or depositions—or “deps” as they are known—are usually presided over by community magistrates or justices of the peace. They are prosecuted by a policeman and, obviously, defended by a defence counsel or lawyer. In actual fact, deposition cases are relatively cheap to run, because the people hearing them are not getting paid and they do not involve a whole lot of jury time. Relative amounts of evidence are accepted in written format, and cases tend to move through quite quickly. But having been introduced to show that the prosecution, on the face of it, has a case to bring, they are now being used—or they are growing to be used—for a number of different purposes.

One of those purposes is to test the weight of evidence against the elements of an offence. By way of explanation, if we consider, for instance, a case of burglary, there is a need to prove the breaking in and entry of a building or something legally considered to be a building, the identity of a supposed offender, and obvious intent to commit a crime inside that building. So the elements required to be proved are those five issues, and at a depositions hearing, evidence would have to be brought to show that each one of those elements can be proved. It is a chance for the police to show that what they are asserting—the case against the defendant—actually stacks up. It tends to focus the police on those elements and on their case to ensure that they are ready, at a given time, to be able to prove the case.

It also tests, on two levels, the witnesses who will prove those elements. One of them is the question of whether they will show up. That is a big question when it comes to, for instance, family violence or sex crime matters, or issues around relationships between witnesses and defendants. It really sets in the minds of the witnesses the question of where they are going to stand on the matter; whether they will actually come through with the goods, and whether they will back up the statement that they gave to the police, possibly when half-drunk or possibly in the heat of the moment. Usually, depositions come along several months after the incident so there has been a time for settling down. So they test whether the witness is going to turn up.

The next point is whether a witness will give the evidence that the police say the witness will give. What frequently happens is that a witness does not, because of the passage of time, or because of the repatriation of relationship, or just because of the fact that the witness has sobered up. The depositions hearing also confronts the defendant with the evidence that lies against him or her. I have seen depositions hearings from the point of view of a detective bringing the charges in the first place, with every interest in seeing that all the prosecution witnesses stack up; and then as a prosecutor running somebody else’s case, and looking at the same things but from a legal point of view; and, latterly, as defence counsel, looking for the flaws and with renewed interest at whether those witnesses are going to stack up.

It becomes incredibly important as to how conscientious the defendant is, or how committed he is—it is generally a he—to the plea that he has given to start with. In Taranaki, 50 percent of the indictable matters that go to depositions are resolved at depositions. That is a huge proportion. Quite honestly, it is usually because the defendant thinks to himself: “Hell, there is no way out of this. I am going to nod the block.” and he pleads guilty. The evidence may not quite stack up, so the police make an accommodation and a charge is preferred—probably less than the one the defendant was initially charged on—the defendant decides that the best course of action is to plead guilty to the lesser charge, and the trial is dispensed with. As a defence counsel, one may have spent some weeks or months trying to convince a defendant that the case against him is heavy and that he will get done like a dinner, but for one reason or another the defendant thinks that he is smarter than the rest of the world and he will get away with it. When the defendant is standing in the court listening to the evidence come out, and the witnesses who are testifying against the defendant come through and come up to brief, the defendant is firmly focused on how much time he will get, should he go down. As there is a discount in time for an early guilty plea, frequently the defendant takes the bag and bites the bullet.

The main reason why this bill is being promoted appears to be one of expediency, as my colleague referred to. It is true that trials—both High Court and District Court trials—cost a heck of a lot of money. This is not only directly, because those involved are paid—quite honestly, jury fees are not that much—but the loss of productivity in having those people away from work for extended periods of time can be huge. Then there are all the players within the jury court system—the judge, the court staff, the police witnesses, and the other witnesses who are called to give evidence. The cost is huge. The fact that so many cases can be settled at a depositions hearing means that the money saved by keeping depositions, in my view and the view of many others, would vastly outweigh running through the trials or the money that could be saved by taking depositions away.

Other concerns around the proposal of pre-trial hearings are around the interest of justice. It is interesting that when the Greens, the Māori Party, or even Labour start talking about the interests of justice then they are doing that because they are interested in justice, but whenever a National member starts talking about the interests of justice, he or she is protecting rich mates who happen to be lawyers. The fact is that the interests of justice need to be protected. The elements of the rule of law in this country that date back hundreds of years to their birth in the UK are important things. If they are eroded, then the whole of society loses. One of those elements is being able to test the evidence. One of the fundamental erosions in this part of the proposed legislation is that any applications for oral testimony at a depositions hearing will be done on the papers. This fact, and the fact that, having been filed in court, it is considered without any contest, apart from submissions on the opposing side, and is decided by a judge behind closed doors is a significant erosion of the interests of justice. This legislation will result in longer trials, more trials, and costlier trials. That is not in the interests of justice in this country.

I will speak momentarily on judge-alone trials. One thing that has occurred time and time again in complex fraud trials or other complex trials is that on many occasions, solicitors have asked to be able to explain or outline their cases to the jury by way of audiovisual aids. They are denied that on the grounds that it becomes too simplistic and a jury may be swayed in that regard. I cannot carry on with that because I have run out of time, but it is a real fear.

MARTIN GALLAGHER (Labour—Hamilton West) Link to this

As the chair of the Law and Order Committee that considered the Criminal Procedure Bill, I arrive in this House with great enthusiasm to speak to its second reading. I am certainly very delighted, of course, that this bill is now back before the House. As previous speakers have already alluded to, this bill has not necessarily been straightforward, at all. For those listening, I guess the bill is very important in that it will improve the efficiency of preliminary hearings in criminal courts, make changes to the jury system, and introduce two exceptions in terms of the law of double jeopardy. The context of the bill is basically the implementation of the recommendations made by the Law Commission, and it is certainly hoped that those reforms will improve public confidence in the criminal justice system by making it more efficient and fair.

One of the key areas of the bill, in terms of changes to the jury system—which of course is very significant and not introduced lightly or even recommended back to the House lightly—is the introduction of majority verdicts 11:1 to replace unanimous verdicts. That is in order to reduce the prospect of hung juries where a decision cannot be reached and, indeed, to allow for judge-only trials to be permitted for a very small number of long and technically complex trials. Obviously, the issue of majority verdicts versus unanimous verdicts has been one of discussion and debate over a number of years, and certainly the select committee listened very closely and keenly to a wide variety of submitters.

Before I deal briefly with the issue of double jeopardy, I want to take the opportunity to compliment the committee on its work. I realise that in a range of areas, as befits democracy, this House enables a contest of ideas in our democratic system; so too do select committees. There are things that are keenly felt and keenly fought. But I want to take an opportunity in terms of this bill to acknowledge the work and the contribution of the Law and Order Committee members at the time of deliberation—albeit, of course, there were differences amongst us. I acknowledge very clearly the work of the former deputy chair, Marc Alexander. He is no longer with us, but I take this opportunity to acknowledge the work he did and his interest in this bill. And of course I acknowledge the members of the committee at the time, including my very good colleague Ron Mark, who is now deputy chair. I acknowledge the work he did, and I also acknowledge the work of Tony Ryall and all members of the committee at the time.

I would like to turn now to the issue of double jeopardy. The longstanding double jeopardy rule provides that no one who has been tried for an offence may be tried or punished for it again. That has been a longstanding and fundamental tenet of our justice system. However, the argument goes that not to be able to hold somebody accountable for a crime in the face of compelling evidence of guilt, represents a major injustice to any victims and potentially undermines public confidence in the justice system. Two exceptions to that rule of double jeopardy are being introduced—the first to allow for a retrial where people have been convicted of perjury or of intimidating a witness during an earlier trial. So one very important exception concerns people who are convicted of perjury—that is, lying—or of intimidating a witness during an earlier trial. In that case, the principle is that they will not be protected by the double jeopardy rule. As well, an exception will be made for the retrial of cases where new and compelling evidence of guilt is established after a person has been acquitted of a serious offence. One can think of a number of cases where very terrible crimes have been committed and someone has been declared innocent, and then DNA and new evidence has come to light and the reaction of the community is the sense that the person responsible can never be brought to justice. The qualification is that very stringent safeguards will be introduced to protect against any misuse of that double jeopardy exception, in terms of advancing new evidence.

I have to say that the committee did not deal with that section lightly, and it listened extremely closely to the submissions. It is fair to say that even in this Parliament there will be some caution in that area. But, fundamentally, I am of the view—as I believe are the majority of members of this House—that the legal system is about justice, and about justice being seen to be done.

Just briefly in the time I have left, I would like to spend a wee bit more time on the changes to the jury system. Again, I want to say that that was another area that was not taken lightly. There have been many cases of a hung jury where 11 jurors have been very strong and resolute. The changes to the jury system will reduce the risk of tampering with the jury. We have certainly seen cases where an individual juror has held out because of other factors.

In terms of committal proceedings, I want to talk about the fact that they will involve the prosecution presenting evidence in written form only, unless the defence applies for an oral hearing and the court believes that that hearing is necessary in order to judge whether there is sufficient evidence to commit to trial. Automatic committals will therefore appropriately streamline proceedings, better utilise court resources, reduce undue delays, and save witnesses and victims the stress of making multiple appearances in a majority of cases.

I do not want to spend any more time in talking, because other speakers obviously want to follow me and I am indeed very keen that this bill progresses. I know that the Minister of Justice, Mark Burton, is very keen, and that we in this House are all very keen, to make progress in what I believe is a very important bill.

Finally, I take the opportunity to thank the members of the committee for their work during the previous Parliament. I want to thank the staff as well, and parliamentary counsel. I say, if I can take just 10 seconds—I know the Speaker is indicating that I should wind up—I think it is appropriate that we should reflect on and thank parliamentary counsel and those many advisers who come and lend us their expertise. I also want to thank particularly the New Zealand Law Society and the many other submitters for their very considered submissions on this bill. Although we might not have done everything they would necessarily agree with, I acknowledge their input and the well-thought-out and very important submissions they made. I commend this bill.

Dr PITA SHARPLES (Co-Leader—Māori Party) Link to this

Here we are again with another omnibus bill before us. In fact, it is a massive omnibus bill, which brings together the complex and diverse legislation incorporated in the Crimes Act, the Summary Proceedings Act, the District Courts Act, the Juries Act, and the Victims’ Rights Act, and provides for a new Criminal Disclosure Act. It is another omnibus bill that tweaks the detail, seeking to become a smooth operator in processing people through the justice system but continuing to sidestep the big-picture problems of increased offending and prosecution.

The purported policy goal of this bill is to maximise both the efficiency and the fairness of the criminal justice system. But how can it be fair that although Māori represent 13 percent of the population over 14 years of age, they account for 40 percent of all arrests, 41 percent of all prosecuted cases, 44 percent of all people convicted, and 50 percent of the prison population? The Māori Party wants to initiate real and meaningful dialogue about what justice really means, and we do this against a background of statistics that reveal an uneven participation at the hands of our justice system. For example, Māori are three times more likely to be apprehended for an offence than non-Māori, and four times more likely to be apprehended for violent crime. Prosecution rates are considerably higher for Māori than for non-Māori—88 per 1,000 against 18 per 1,000. Conviction rates are 50 per 1,000 for Māori compared with 12 per 1,000 for non-Māori. These are the cold, hard facts before us as we look to consider this Criminal Procedure Bill.

Against this background of overrepresentation in arrests, convictions, and jail sentences, it must be noted that, now more than ever, Māori groups such as iwi, hapū, whānau, community committees, wardens, and special purpose groups are increasingly involved in strategies that are designed to reduce these inequalities, as well as working to promote economic development and Māori success in business. Despite this effort, however, disparities continue to exist between Māori and non-Māori with regard to employment, income, health, housing, and education, as well as in the justice system.

To this end the Māori Party holds that despite the current popular political climate of racial funding cleansing, there is a need for specific measures based on ethnicity to strengthen the social, economic, and cultural rights of Māori. We remain firmly of the view that justice for Māori includes socio-economic considerations as well as underlying institutional and structural marginalisation.

We have, then, serious questions to ask around the new provisions introduced in this bill. With regard to trial by judge instead of jury, our concern is how we can enhance community involvement in the justice process. Reverting to one judge to rule rather than a jury of 12 peers—although it is specified that that would occur only in two particular cases—has worried us. Justice must not only be done, it must be seen to be done. New Zealanders have grown up with the idea that we have a right to be heard by a jury of our peers—to be participants in democracy.

Learned colleagues within this House will know that “democracy” is derived from the Greek word “demokratis”, meaning “demos”, or the people, and “kratia”, or power. Democracy has a history that started in the days of the Spartans and the Athenians of Greece prior to 500 BC. It ignores hereditary class distinctions, it tolerates minority views, and it embraces diversity. Democracy is also a very familiar concept with Te Ao Māori. Within our communities matters will be debated at length, consensus is preferred, and, as anyone who has stayed within the shelter of the wharenui will attest, it is open to everyone to have a say and to be heard.

Our concern with the proposed changes to the Crimes Act 1961 is whether the decision to reduce a democratic structure to the ruling of one judge—no matter how wise and learned that judge is—may set a precedent across the justice sector. The Māori Party is aware that, obviously, the bill is trying to address problems with the selection of juries. The main one is that many people do not want to, or cannot, serve on juries, and given this, although a jury should be democratic and representative of the community in the way it is set up, its membership may not always achieve this. But trying to address this issue with a stick—the punitive measure of fining people $1,000, up from the current fine of $300—will never work. The problem could be better addressed by making jury duty more attractive through making changes to the court processes, tailoring hours to fit with schools, or creating opportunities to make jury service more family friendly with regard to childcare and transport. Most important of all, the so-called problem with juries could have been an incentive to introduce citizenship education to teach the value and importance of being involved, as a community, in justice processes.

The bill introduces the possibility of 11:1 majority verdicts. It puts in place changes to section 17 of the Juries Act 1981, which states: “Every jury shall comprise 12 jurors.” Māori have had extensive experience in the jury process. One of the most interesting features of the justice system that Moana Jackson has spoken about is that, although defendants are frequently Māori, juries are invariably Pākehā, often because potential Māori jurors are challenged. One wonders how a Pākehā accused would feel appearing before an all Māori jury—it would never happen.

In fact, the history of Māori experience on juries bears mentioning in this House. Despite a brief period between 1844 and 1868—only 24 years—when Māori were able to serve on a mixed jury for the trial of any case in which the property or person of a Māori might be affected, Māori have been prevented from taking up their democratic right to serve on ordinary juries. From 1868 no Māori could serve on a jury if either the accused or the victim was a non-Māori. The law remained in this form for nearly a century. That is right—100 years. It was only in 1965 that legislation placed Māori on an equal footing as far as jury service was concerned. So having only fairly recently gained the right to be eligible to serve on a jury, the last thing we would look to do now is to look to reduce it again or to settle for a more limited number of jurors in supporting a verdict.

The notion of a unanimous verdict is an important one. The Law Commission reminds us that the value of a unanimous verdict is that it increases community confidence in the verdict and in the criminal justice system, which is—again—desperately needed. Being required to reach a unanimous verdict encourages careful discussion and increases the likelihood of each juror participating and being listened to. It is a worthy aspiration; indeed, it is one that this House could well learn from.

The third point I want to refer to is the concept of double jeopardy. The bill introduces exceptions to the double jeopardy rule. The Māori Party is opposed to any such changes coming into law. People should not be placed at the risk of being prosecuted twice or being persecuted by the police.

Finally, the Māori Party is in support of the need for criminal disclosure, and we support the recommendations from the Law and Order Committee to reaffirm an accused person’s right to fair process. The criminal disclosure parts of the bill will ensure that adequate and timely disclosure to and by defendants will occur, so that they can prepare their cases and determine how to plead. This will include the imperative for the police to also present their case to the defence in order to ensure that defences can be properly constructed. Disclosure requirements are codified in this bill, and we support the intention behind doing this.

The House must be aware that the spotlight of the world is on us in the aftermath of the very poor report card we received from the United Nations special rapporteur. We remind this House of the rights of indigenous peoples, recognised in article 33 of the draft declaration: “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive traditions, procedures and practices, and juridical customs, in accordance with internationally recognised human rights standards.”

NANDOR TANCZOS (Green) Link to this

I begin by picking up on a point that Dr Sharples made at the beginning of his speech, about this bill being an omnibus bill in relation to criminal procedure. He pointed out that the bill tweaks a number of things in various ways. That is a criticism I also brought up during the first reading of this bill, because the Government seems to have an ongoing and growing habit of introducing bills such as these that cover a whole range of different subject matter. Some of them are fairly minor tweaks to details of procedure, and some of them, as in this bill, are actually significant assaults on some principles of justice. It makes it very difficult to have a proper consideration of the legislation in the House, because parties are required to take a yes/no position on the bill if we recognise that some parts are positive and to be encouraged and some parts are deeply disturbing. I think it is improper for the Government to do some of the things that are being done in that manner in this omnibus bill, because they cut across the House’s ability to debate, consider, and vote on those issues of principle properly. I have started with that comment, because I think it is important.

In this second reading speech I do not intend to go into great detail about which things the Greens support. I have already covered those matters to a degree in my first reading speech and, as we go through the Committee stage, we will be looking at the bill clause by clause, or perhaps part by part, and we will be discussing its specifics. So I want to confine this second reading speech to three main points. They concern the issues that the Greens oppose in this bill, which are the reasons why we will oppose the bill at its second reading. In the first reading I indicated that it may be possible for the Greens to support the bill if we saw that some reasonably significant amendments had been made to it. I think it is unfortunate that those issues were not addressed—or, at least, not to the Greens’ satisfaction—during the select committee process, nevertheless, we hold out some hope that in the Committee stage we may be able to address some of them.

The first thing I will touch on is the provisions around having trials by judge alone, where clause 5 inserts new provisions into the Crimes Act to empower judges to order a trial without a jury in certain cases. The first circumstance is where the case is likely to be long and complex. I took heed of Simon Power’s speech, in which he made, I think, a very strong argument for the case that jurors are highly competent and able to digest and deal with very complex information. They do that all the time in our courts and produce good results in the vast majority of cases. That is not to say that sometimes there are not problems, but I think that that would be true whatever procedure was used in a case, and that we have to recognise that jurors can and do deal with very difficult, long, complex cases very competently. Nevertheless, it is also true to say that some issues are of enormous specialist and technical difficulty, so it would be difficult to expect an ordinary member of the public to deal with some of those matters. I think there is an argument to be made that very long and complex specialist trials might be better decided by a judge alone, so there are arguments in both directions on that particular provision.

The provision that probably disturbs me a little bit is that concerning evidence of intimidation of jurors. If we actually look at the provisions in the bill, such as new section 361E in clause 5(1): “Judge may order trial without jury in cases involving intimidation of juror or jurors”, we see that new subsection (2) states: “However, the Judge may make an order … only if satisfied that there are reasonable grounds to believe—(a) that intimidation of any person or persons who may be selected as a juror or jurors has occurred, is occurring, or may occur;”. I think that that is a very broad provision. It is not saying that the intimidation must have occurred, or must be occurring, but simply that it may occur—intimidation may occur. Well, what on earth does that mean? I think that that is open to enormous scope for misuse. Although I do not expect that most judges are going to be tempted to do that, I think the legislation we pass in this House must be free of that potential. So those provisions are enormously problematic, and they are something the House should go back and have another look at.

The whole question of there being reasonable grounds to believe that intimidation is even occurring is a difficult one. I think that that provision has a fairly low burden of proof. If we look at some of the provisions the police have for reasonable grounds to search, for example, and if we look at the courts’ test of what that hurdle actually is, we can see there is a fairly low burden of proof. So, as I say, I think that is an issue we need to address.

As we start to move away from the idea of trial by jury in some of those exceptional cases, it makes me wonder what effect that move will have on appeal rights. I am not a trial lawyer; I am not even a lawyer, actually. In fact, Darren Hughes once suggested in a select committee that he thought I might have been a lawyer, and I was not sure whether he was trying to insult me or flatter me. I think it was the former, actually.

RON MARK (NZ First) Link to this

Well, at this point in the evening I think that pretty much most of the points that need to be covered in this bill have been covered. I can see from the line-up of National speakers yet to address the bill that there are some people who are well qualified to speak further on it.

I have to start by saying that New Zealand First will be supporting this bill in going through its second reading. I also want to acknowledge my colleague Dail Jones QC who replaced me on the Law and Order Committee for the hearing of submissions on this bill, and who saw most of its progress through the committee. The bill actually went to the committee on 29 June 2004, so it has been there a little while and quite clearly has been a contentious bill for many reasons.

I also want to acknowledge right now the work done by our deputy leader, Peter Brown. New Zealand First tends to be ahead of this Parliament on law and order issues, as on a lot of things, and in fact it was in 2003 that Peter Brown visited the United Kingdom—almost a year before this bill was introduced into Parliament—and took the opportunity to discuss with a number of British members of Parliament the question of double jeopardy and the law changes they were considering at the time.

It was interesting that Peter Brown came back and reported to our caucus that some problems had finally been acknowledged by the British Parliament—problems that were based around the activities of organised crime. It was quite alarming to hear from him his description of how police were having to deal with situations where new evidence had been produced that would secure a conviction of criminals from the world of organised crime. They had been acquitted or found innocent of crimes in the first instance, yet the police were powerless to take those people back to court and retry them. Particularly nasty was the fact that many of those people had gained their acquittals or innocent verdicts by using intimidatory tactics on jurors and on witnesses. I guess the real salt in the wound was that some of those people, having been acquitted, then went on to write books and boast about how they had cheated the justice system. That was the hot topic of discussion within the British Parliament at the time. Quite clearly, Britain decided that it had had enough, and I guess it was not too surprising that eventually the New Zealand Parliament would catch up with the play. So it has done, and here we have this bill.

I acknowledge that among the points strongly discussed by New Zealand First was, firstly, the provision to allow juries to convict by majority. That was not an easy issue and there was quite some discussion about it, but at this present point in time we are happy to continue the process as laid out in this bill.

Another point was trial by judge instead of by jury—something that has been brought about and noted because of the chances for juror intimidation. There are those people who say that that situation is not very likely, and that we should not be passing such legislation and denying some people the right for a trial by jury. But I need to remind the House of what happened in Christchurch in 1997, which was not so long ago—9 years ago—when the Road Knights, white power gang members, openly intimidated witnesses outside the Christchurch District Court to such an extent that this Parliament, during the time of the National - New Zealand First coalition, took steps then to pass anti-harassment and criminal association legislation. The idea that organised criminals, gangsters, and thugs should be permitted to pervert the course of justice and advantage themselves in the courts by intimidating witnesses flies totally in the face not only of the justice system but of democracy and of what law-abiding New Zealanders demand. So we are not averse to those changes.

New Zealand First understands the dilemma raised by double jeopardy, and on looking through the select committee’s report I note that Dail Jones, whilst acknowledging the concerns held by New Zealand First and the work done to research what had happened in the UK, was at pains to point out the deep consequences of the proposed changes. I go to the report itself, which deals with the rationale for the change. It deals with the tainted acquittal exception, and with the intention that it should apply to persons who escape probable conviction for a serious crime by committing an administration of justice offence that leads to an acquittal. An example is the R v case. Obviously, I am not that familiar with that case, but clearly Dail Jones was.

I notice that the National Party and New Zealand First stated in the commentary on the bill: “National and New Zealand First consider that the proposed exceptions to the rule against double jeopardy have not been justified and should not proceed. Such a hard-won right, which has withstood the test of time and forms a cornerstone of our legal system, should not be undermined on the basis of scant evidence and research.” My colleague Dail Jones further inserted the statement: “New Zealand First believes there should be a minimum 10-year sentence without any remission for cases such as those illustrated by R v .”

I guess that highlights to me that there has been some very serious discussion, particularly among members of the legal fraternity, over the issue of double jeopardy. I know that some very strong representations were made to my colleague Dail Jones, and most certainly those representations have been made to me. I hear and take on board the comments of some speakers here in the House today but we will address this issue in the Committee stage with a very open mind, because at the end of the day I do not want to wake up and find that incidences are occurring in New Zealand such as have happened in the United Kingdom. To people who say that those things are not possible, I simply say that we have an unfortunate habit in this little country of ours of catching up on things 5 years after the fact and regretting that we did not take opportunities to make changes earlier. I would hate to think that that should be the case 5 years from now, with Parliament having not actually passed this legislation. Having said that, I say that the implications of allowing a person who has been found innocent to be subsequently brought back to court and retried are serious, and we acknowledge that. I do not have anything further to add other than to say that we will be listening intently to the debate. As long as that debate is serious and is not filibustering for the sake of filibustering—we all hear far too much of that in this House—then we will take on board any relevant points made.

KATE WILKINSON (National) Link to this

In rising to support this bill passing to the Committee stage, I have to say that National has some serious reservations in relation to some parts of it. It is interesting, when reading the submissions on the bill, that the New Zealand Law Society itself opposes the major aspects of the bill, stating: “The Bill in its current form significantly undermines certain fundamental principles of the criminal law. There is no sufficient basis in the Society’s view for these radical changes. There is little or no empirical evidence that the perceived problems the Bill purports to address actually exist.” It seems so often that there may be a mischief out there, so a bill is created to address that mischief, but often that does not happen. Now we have a bill in which some of the mischief is unclear.

I too want to concentrate on the rule relating to double jeopardy, as many previous speakers have done. I share concerns that have already been expressed in this House. This rule, which is so deeply ingrained and, indeed, enshrined in our judicial system, is simply that a person should not be tried for the same crime more than once. That is on the basis that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him or her to embarrassment, expense, and ordeal, and compelling the person to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he or she may be found guilty. This rule against double jeopardy is also contained, as has been mentioned, in the New Zealand Bill of Rights Act, which provides that no one who has been finally acquitted of, convicted of, or pardoned for an offence shall be tried or punished for it again.

So what was the mischief? Why did we even need to consider a change to this well-established principle of double jeopardy? It seems that the reason for this was, as Mr Mark has suggested, a Mr Moore, who was a gang member charged with murder. He was acquitted of murder but was later tried for persuading a witness to give false evidence for him at the initial murder trial that led to that acquittal. Because of the rule against double jeopardy, Mr Moore could not be retried for murder, although he was sentenced for attempting to pervert the course of justice. The question to be asked, therefore, is whether this solitary, single case is sufficient to justify interference with the law against double jeopardy or whether the matter could have been simply remedied by increasing the penalties for perverting the course of justice. A law change made on the basis of one case makes for bad law.

So under the tainted acquittal provisions of this bill, which have been mentioned, a person can be retried for a specified offence if the High Court is satisfied that it is more likely than not that the commission of the administration of justice offence was a significant contributing factor in the person’s acquittal, and no appeal or application in relation to the administration of justice offence is pending, and the retrial is in the interests of justice. But what does “more likely than not” actually mean? Is it the balance of probabilities, or is it so dangerously wide, as suggested by one submitter, and elusive that it could offer no clear standard to follow?

It could be argued—and, indeed, has been argued—that these proposed changes to the double jeopardy rule amount to an overreaction to the Moore case, and that the appropriate way of dealing with the injustice in that sort of case is, perhaps, by increasing the penalty for perverting the course of justice to one whereby the punishment is equivalent to that of the avoided criminal conviction. It is also interesting to note that the United Kingdom has legislated for a tainted acquittal exception, with the first double jeopardy case being considered only in November last year. So that is one case in one year.

If there are to be exceptions to the double jeopardy rule—and the tainted acquittal rule is one—we remove the rule for that case, and we have the new evidence rule, then where will the other exceptions creep in? Where do we stop, and will we end up with a situation where all verdicts are open to relitigation? This new evidence rule provides that a person may be retried if there is new and compelling evidence to implicate the acquitted person in the commission of the specified serious offence, and a further trial is in the interests of justice. It is colloquially known as the DNA rule.

I admit there are some safeguards provided in the bill but they are, maybe, not as stringent as the member Martin Gallagher suggests. There are some safeguards such as the exception being available for only serious offences where the maximum penalty is over 14 years' imprisonment. But, as one submitter wrote, these safeguards do not alleviate the inherent risks in such an exception being introduced—namely, the potential minefield involved in deciding exactly what evidence could be regarded as new and compelling, and the difficulties in coming to a consistent approach.

It is interesting to note that the New Zealand Law Society opposed allowing retrial on the basis of new and compelling evidence, noting there was no principled basis for allowing such retrials. The Attorney-General also opposed it. The Law Commission also opposed it. National supports, as stated in its minority view, the proposal of the Law Society and others that the penalties for perverting the course of justice be expanded. We think that is a more appropriate measure, that would preserve the vital principle of double jeopardy but also recognise the magnitude and consequence of the primary offence.

Judith Ablett-Kerr QC in her submission—and I think this is worth repeating—stated: “The New Zealand criminal justice system has been built upon certain fundamental principles, several of which are challenged by this bill, amongst them the tenet that it is preferable for a guilty person to be wrongly acquitted than an innocent person to be wrongly convicted. It is an inevitable corollary of maintaining the fundamental rights of accused persons that occasionally the guilty will escape, but the risks involved in eroding such rights clearly outweigh any of the benefits proposed by the bill.” In other words, it is better that 10 guilty persons escape than one innocent person suffer. These double jeopardy exceptions are controversial, they are potentially dangerous, and time will certainly tell whether we are correct in being cautious, suspicious, and against them. I certainly hope that in the Committee stage we can have some sensible and rational debate in relation to double jeopardy.

Having said that, the other provisions of the bill are not nearly as controversial, in my view. Adopting majority verdicts is probably a practical solution to an 11:1 stalemate or impasse. Other countries do not require unanimous jury decisions. In the UK it is 10:2 and in many Australian states it is also 10:2, with it being 11:1 in Victoria, as is proposed by this bill. As one juror confessed and as was reported in the New Zealand Herald: “ fellow jurors in a rape trial were ready to agree to a guilty verdict because some were desperate for a cigarette and others wanted to get home to watch .” That is not good justice.

At the end of the day speedy, proper justice is required. Unnecessary delays are costly and cause extra anguish. Miscarriages of justice, whilst not being able to be eliminated entirely, must be eliminated as far as possible. There must be adequate checks and balances, and the legislation must also be workable. National supports the bill, with serious reservations, going to the Committee stage, only on the proviso that there are significant amendments, some of which are in relation to the double jeopardy provisions.