Hon SIMON POWER (Minister of Justice) Link to this
I move, That the Criminal Procedure (Reform and Modernisation) Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee. Over the past 20 years there has been growing criticism of criminal procedure in New Zealand. The historical answer to this problem has been to appoint more judges and to build more courthouses. It is clear that that approach has not worked. It is unacceptable that the median time to dispose of a summary case is 26 weeks, the median time to dispose of a District Court jury case is 52 weeks, and the median time to dispose of a High Court jury trial case is 69 weeks. Nor is it acceptable that according to officials there are at least 43,000 unnecessary court appearances throughout the court system each year.
Our key criminal procedure legislation dates from the 1950s and has become complicated by over 50 years of ad hoc reforms. Criminal procedure in New Zealand has been described as an impenetrable maze. This bill consolidates criminal procedure law and introduces a comprehensive package of reform to ensure that the criminal justice system is more transparent, understandable, and efficient. It represents the biggest reform and modernisation of criminal justice procedure in nearly two generations. It is part of this Government’s commitment to improving the criminal justice system for the benefit of all of those who use it and depend on it.
This package has the potential to free up 16,000 court sitting hours each year. It has the potential to take 5 to 13 weeks off the average time to dispose of a case. It has the potential to reduce costs by approximately $24 million over a 5-year period.
There are a number of significant improvements in the bill. One improvement is that trial procedures will fit the nature and seriousness of the alleged offence. The bill seeks to raise the threshold at which a defendant is able to choose a jury trial from offences carrying a penalty of more than 3 months’ imprisonment to those carrying a penalty of more than 3 years’ imprisonment. This will strike a better balance between the defendant’s rights and ensuring that only cases of significant or sufficient seriousness or public interest are determined by resource-intensive jury trials. This, and other changes, is expected to result in up to 1,400 fewer cases needing to be designated for trial by a jury.
The bill places the onus on parties to progress cases as much as possible outside the courtroom, facilitated by the preparation of case management memoranda. This will result in fewer adjournments, shorter hearings, and reduced time and costs.
The bill requires the defence to identify and disclose issues in dispute before a trial. Focusing only on disputed matters at trial is, I am advised, expected to result in approximately 450 fewer court days.
Further provisions allowing courts to proceed in the absence of a defendant when it would be in the interests of justice will also ensure that trials start on time and proceed in a timely manner. Similarly, changes allowing greater flexibility to continue with a trial when jury numbers fall to 10 will reduce the need for retrials.
The bill’s provisions to encourage court participants to cooperate with one another will help ensure that cases progress in a timely, efficient, and appropriate way. These provisions include an ability for the court to impose cost orders against parties—both defence and prosecution—and to impose bail conditions on a defendant to take the necessary steps for the timely progression of his or her case. It also includes a requirement for the court to take into account a defendant’s compliance with procedural matters as a mitigating, or, indeed, aggravating, factor.
Other provisions in the bill reflect the need to amend existing provisions in the Summary Proceedings Act 1957 and the Crimes Act 1961 in order to simplify and modernise language and to ensure that court processes can take advantage of developing information technology as appropriate.
This package builds on other changes under way to improve the criminal justice system. Those changes include legal aid reforms, initiatives in respect of victims of crime, and the roll-out of audiovisual links in courts and prisons.
Like others in the House, I am sure, I am a strong believer that justice delayed is justice denied. This bill will ensure that timely justice is delivered for victims, witnesses, defendants, and the community. It will benefit those people who are involved in the criminal justice system through no fault of their own, while maintaining the defendant’s fundamental right to a fair trial.
This legislation is a major piece of work and has been in the making for more than 2 years. The bill reflects extensive consultation with the judiciary and lawyers, and a trial of some of the new processes at Tauranga District Court and Manukau District Court. I thank the judiciary and the legal profession for the constructive role they have played in drawing this bill together. I also thank the Law Commission for its significant contribution to this bill. I look forward to the select committee’s consideration of this significant and comprehensive reform of criminal procedure. I commend the bill to the House.
CHARLES CHAUVEL (Labour) Link to this
Labour agrees with the Minister of Justice, but only to an extent. Some aspects of our law surrounding criminal procedure are inflexible and out of date and they require reform, so to the extent that the Minister is tackling those issues, we congratulate him. We will support the referral of the Criminal Procedure (Reform and Modernisation) Bill to a select committee, which, I understand, is not a universal position as far as other parties in the House are concerned. But in doing that, we are concerned that some of the changes could have major ramifications for people’s rights. Because of this, we intend to apply very close scrutiny to the bill at the select committee to ensure that if we do achieve greater efficiency, then we will not sacrifice fairness. I see that the Minister is nodding with approval. Presumably, that means he tried for a much more equitable package before the Cabinet process and was knocked back, so we will do what we can to make sure that his original aim of fairness above all is restored in the bill.
I will do a couple of things in this call. The first thing is to talk a bit about why we agree that reform is necessary to some extent, the second is to talk about our hopes for the select committee process, and the third is to raise some of the concerns that lead us to have the reservations that I have expressed.
As to the need for reform, poor quality justice is delivered to many defendants, victims, and other participants in our justice system as a result of excessive costs, excessive complexity, and excessive delays, and we have heard some of those catalogued in the Minister’s speech. The fact that inequitable outcomes were being reached was acknowledged in the 2007 Criminal Procedure (Simplification) Project, and many of the recommendations of that project have made their way into this bill. Some of them are common sense and they merely bring the law into line with modern context—a good example is allowing court documents to be filed electronically—but there are others that could have much more serious consequences.
Achieving efficiency in our justice system should never come at the expense of our basic freedoms, but unfortunately many of the provisions contained in this bill look as if they may curtail some of those freedoms, and the Attorney-General’s comments in the New Zealand Bill of Rights Act vet indicate that those fears are well-founded. One example he gave of a contravention of the bill that cannot be justified is a provision that allows a real risk of letting trials proceed without the presence of the accused. Obviously, when issues as fundamental as that are at stake, this is an occasion for the House to take real care.
In proceeding to the select committee process, I think Labour members would particularly like to use this occasion to ask Government members to do a few things during that process: first, the Government should listen to the experts, and, secondly, it should take their advice seriously. When basic democratic freedoms are at stake, we have a serious justice issue on our hands. If we need any evidence of that, we need only look back at the ACT Party’s “three strikes” legislation when it was being pushed into law, when the police were appointed as advisers because they better matched the tone of the law and order dog whistling than the Ministry of Justice officials, who should rightly have been advising on that bill. Another example was the fiasco over Paul Quinn’s Electoral (Disqualification of Sentenced Prisoners) Amendment Bill, which, as we now know, had completely the opposite effect to the one that its mover intended. Those are the sorts of mistakes that we have to avoid when we deal with this legislation.
The other thing I would ask Government members and Government Ministers in the House today is for them to keep an open mind and remember what they have said in the past on these issues. I remember when I was first elected to this House and Simon Power and Christopher Finlayson were in the Opposition. They were calling for drastic reforms of our justice system and, in particular, our criminal justice system. They must have had more in mind than this reform, which is somewhat far-reaching, but I think it could not be described, even with the most charitable motives, as a thoroughgoing overhaul of the system—it is not.
If this Parliament was serious about really overhauling the justice system, delivering justice to ordinary New Zealanders, and looking at the problem we have with very, very well-resourced superior courts but actually pretty scungy courts at the District Court level, both in the civil and the criminal jurisdictions, then it ought to be dusting off that 2004 Law Commission report on the structure of the courts and looking at the very careful, systematic recommendations in that report. I see that the Minister is smiling. Yes, it ought to have been done earlier than this; it ought to have been done by Labour, but it was not. But here is a great opportunity for him to get a reputation, and a deserved reputation, for being a reformer of the system by going back to those first principles and looking at how we can make justice much more readily accessible to the ordinary users of the system. That 2004 report is by far and away the best starting point that anyone has come up with in recent times in New Zealand. Its title says it all: Delivering Justice for All: A Vision for New Zealand Courts and Tribunals. Some very, very good policy recommendations in there have been lost and should be considered.
There are a number of provisions in the bill that members on this side of the House will not take a final position on until after the select committee process, but I would like to mention a few of the points of concern. The first is the proposed change to the threshold for jury trials as of right. It is serious, at least because it involves an amendment to the New Zealand Bill of Rights Act. My understanding is that there is still some discussion at officials’ level about just how to change the threshold, whether it should be a brightline test moving from 3 months to 3 years’ minimum imprisonment, or whether some other slightly more complex test should be adopted, and I think the select committee will hear more about that. Certainly our preliminary view would be that if there is to be change—if there is compelling evidence that our threshold is outdated and too generous with reference to international experience, then that should be clearly established at the select committee—then there should be a very clear brightline test as to what the new threshold should be. Also, we should take real care in amending the New Zealand Bill of Rights Act. It is not an ordinary statute; it has become an important part of our constitutional arrangements. It is not satisfactory to be able to amend it with just a simple parliamentary majority in the ordinary course. There should at least be a convention around striving for consensus before we touch the provisions of that bill.
Another provision of concern is the provision that would allow jury trials to proceed with only 10 jurors. It has to be said that that is a serious impingement on the right to a fair trial. What happens next?
The Minister says that they can now, but the reality is, as he would concede, that this bill makes it much easier. It makes it much easier to become the norm in the event that a judge decides that it is fair. We have real concerns about whether that practice will become the norm under the provisions in the bill. It is another question that will have to be addressed, as is the removal of a defendant’s right to be present at his or her own trial. Unlike the previous provision, where a discretion is rested with a judge, here is a provision that says the courts must proceed without a defendant if that defendant does not have a reasonable excuse for their absence. So the discretion of the judge to do justice is curtailed. That is a matter that the select committee will have to look at very carefully.
I am sure my colleagues will raise more concerns about various other aspects of the bill. I hope that the House will note that our concerns are sincere. We will proceed in good faith in the select committee to seek to have them addressed. We are somewhat disappointed that this is not bold reform—the sort of bold reform that the Minister and his colleague the Attorney-General called for in Opposition. They talked about a system in crisis—a system that was broken. This sort of piecemeal reform will not fix it all.
I say to the Minister that we do not weigh reform judging by the number of pages we have been clever enough to come up with in a bill. We need to look at the coherence of the proposals and whether they will be fit for purpose. Until we get principle-based reform, root and branch, from the ground up, in the justice system, my fear is that we will not get that, and this bill certainly does not deliver that.
SIMON BRIDGES (National—Tauranga) Link to this
It is very good to speak on the Criminal Procedure (Reform and Modernisation) Bill, and to note some of the things that the member Charles Chauvel has said. I did not hear all of his contribution to this first reading. He made some very sensible contributions. It was good to hear that Labour will be withholding its final position on a number of things. I agree entirely with the member that given the detail we have in this bill, and the myriad things it is doing in our criminal procedure arena, we will, as a select committee, have to be very careful, very measured, and go through the detail with the seriousness it deserves. But I cannot accept what the member says when he calls this bill “piecemeal”. I confess that I have not read all 525 pages yet, but what is very, very clear to me—
Hon Ruth DysonI assure the member that I will read it very soon, but it is a big bill. What I am very clear on, just from what I have read and the summaries I have read, is that it will bring a smarter, more efficient criminal justice procedure. Charles Chauvel is not right when he calls this piecemeal. It is also delivering on a huge raft of measures that criminal lawyers have been asking for, for some time. For example—and I know judges have been calling for this for some time—it includes a measure whereby defence counsel narrow in on the issues they want to argue in a case, rather than a sort of scattergun approach. That is merely one example.
However, because it is such a large body of work, I want to focus on one particular area, and that is the issue that Charles Chauvel has mentioned whereby we are ensuring that trial procedures are appropriate to the nature and seriousness of the alleged offence, and where we are raising the threshold for jury trial from 3 months’ maximum imprisonment term to 3 years. I entirely agree with that. Of course, there are two kinds of hearings in the criminal system. There is a hearing before a judge, then we have trials that can be “judge alone” or by jury. Effectively I am talking about jury trials. An accused or a defendant has had the right to elect trial by jury—and I am simplifying because there are a small number of exceptions—effectively from when there is a maximum 3-months’ imprisonment term.
I say, and I say this from an ex-practitioner’s point of view—and I am sure there are many theoretical reasons as well why this is right—that the 3-month maximum is far too low. It is at these minor trials that go to jury where a young prosecutor learns his or her craft. In my experience, juries would often decide that the Crown was wasting its time bringing these, dare I say it, rats and mice cases to the jury. I can think of one particular case—it was a day-and-a-half jury trial involving the theft of a $300 piece of equipment. Excess breath-alcohol cases can go to jury trial, as can assault cases. The case of a male assaulting a female can be—and I do not want to be glib about this—significant to the people involved, but technically be an exceptionally simple case to prove. The intentional application of force generally comes down to just two things—did it happen and did he or she mean it. As I say, juries sometimes think the Crown is wasting their time, that it is using the jury trial as a hammer to crack a nut in the case of an often minor offence. As I say, because of that, quite often in these smaller cases juries acquit, because, like me, they think jury trials should be used for serious cases, where there is a real jeopardy to the accused, not the rats and mice stuff.
On that score alone, this bill is significant. It actually does dozens more things than that, as I see it, but on this count alone there will be 1,000 to 1,400 fewer designated jury trials per annum. The officials tell us that that means there will be 300 to 600 fewer actual jury trials a year. That will mean huge savings in time and resources for our courts as they do not need to go through the basics when they have a judge alone. They do not need to tell the jury the absolute basics. In fact, generally there will not need to be submissions on the facts, because the judge can take cognisance of them for himself; he does not need submissions. So that is a much quicker process. It does not mean less justice; it just means more efficiency, less delay, less cost, and, I suppose—to coin a phrase that another great Minister has used—better, sooner, more convenient justice.
Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this
I wish to speak on the first reading of the Criminal Procedure (Reform and Modernisation) Bill. I will comment on a couple of points that have been made. One is that the size of a bill is not the measure of the depth of its application, or of whether it will, in fact, make a significant difference to the way things are done. I could point to legislation that is large in size but not great in impact; there have been many examples of bills like that. So I do not think that we should be taken with the fact that this bill has some 500 pages. I am very pleased the previous speaker, Simon Bridges, has read every page of it. I am not on the Justice and Electoral Committee, so I did not have the pleasure of going through it with a fine-tooth comb.
Hon LIANNE DALZIEL Link to this
Well, I have far too many botch-ups to fix in the bills that get referred to the Commerce Committee, so there you go.
Hon LIANNE DALZIEL Link to this
Well, we might find some difficulty. But I am sure that Mr Assistant Speaker Roy does not want us discussing another bill during debate on the Criminal Procedure (Reform and Modernisation) Bill.
I will particularly focus on the question of name suppression. This bill proposes some changes. They are probably not changes of substance, because, of course, the precedent has already been established through the court system to allow for a threshold to apply against the presumption that suppression will not be granted. That threshold seems to operate quite universally within the higher jurisdictions, but it appears that there is some discussion as to whether suppression is being appropriately applied at the lower level.
I think this is an incredibly important issue. It was interesting going back to the Law Commission’s report, Suppressing Names and Evidence, because everybody who submitted on that report actually agreed with the starting point, which was that we start with the presumption against the suppression of evidence. Essentially, they were arguing that the principle of open justice and the right to freedom of expression are rights that go to the very existence and health of our political and legal institutions. Everyone accepted that—every single one of the people who submitted on the report agreed with the starting point that suppression should not be granted.
But somewhere deep down inside of me I do not know whether that still should be the case in a society where we have instantaneous communication. That rule was not developed in this environment, at all. That rule was about having courts open, and about people being able to freely come and go and observe the processes of justice. Nowadays people are convicted before they have even had a trial: they are convicted in the court of public opinion before the case even starts. That bothers me—it really bothers me. I wonder whether this is not a good time to reflect on the history of why we have ended up with this presumption operating the other way.
If we are operating from another fundamental principle—that people are innocent until proven guilty—then surely that presumption should exist as a primary protection. Maybe the question around suppression is actually more about consistency than it is about openness. Maybe the consistency should be the other way around: the presumption is that suppression is always granted unless there is a very good reason not to grant it.
I will just explore this. I know of a case in Christchurch where I think there was a travesty of justice, in terms of what actually occurred. It was a case in which name suppression had been granted against a male in, I think, his 40s. The charge that he was facing related to an entrapment case. A police officer had brought a 14-year-old posing as a daughter to make her available for a sexual transaction, which, of course, would be illegal on every level. In fact, nothing happened, but a transaction was to be entered into. He was charged with the offence. Name suppression was granted. There were all sorts of murkiness around the entrapment issue, so it was going to be a very difficult case.
There followed a series of appearances on the Holmes show, essentially, of males in their 40s holding high-profile positions—which actually looked like free advertising to me; they were probably advised by a certain consultant, who seemed to be the same consultant advising all of them—who all came out and said it was not them. Every single one of them appeared on the television saying it was not them.
When the case went back to the court for a review of the suppression order, I felt that the judge was put under enormous public pressure to lift the suppression order, because suspicion was being cast upon so many. I think that was because there is an essential presumption that names will be put out in the media and that somehow we have the right to know who is being charged, when in actual fact we have the right to know who has been convicted. There are only very exceptional cases where name suppression would apply in a case after a conviction, and those cases really relate to the rights of victims.
I know that view has not been adopted, but I would really like us to take the opportunity to reflect on whose rights and what rights we are really protecting with this debate on name suppression. Sometimes I think we forget that our technology has moved on beyond what was available to those who wrote the original rules under which we operate today.
I know that the Minister of Justice has taken some considerable effort on this issue. There is the wider issue of what cannot be suppressed in an environment that has changed, as well. Maybe my plea is too late, because there is no mechanism for protecting that information in the Internet age. I will not describe what Whale Oil calls the Minister, because I know what the acronym stands for, and it would be totally unparliamentary to mention it.
Hon LIANNE DALZIEL Link to this
Well, I do not normally read Whale Oil. I make a point not to, but it does tie up with all of this. I think the issue around suppression cannot be separated from the fact that access to information is now so open.
The Minister has conducted, alongside these changes in our law, a Law Commission review about the adequacy of regulations around how the Internet interacts with the justice system. I support the concept of having that review, but at the same time I acknowledge how hard it will be. There are two media jurisdictions at the moment, the Broadcasting Standards Authority and the Press Council, for those of us who read or view the news. They exist because we have the right to have matters presented with fairness, accuracy, and balance. We will not get that from Whale Oil. We would not expect it from Whale Oil. In fact, he would not be Whale Oil if there was any fairness, accuracy, or balance in anything he said. Actually, when we think about what a blogger does—
Hon LIANNE DALZIEL Link to this
I am being serious. When we think about what a blogger does, we would not expect fairness or balance, but I do not think it is unreasonable to expect accuracy when someone knows they are deliberately misrepresenting the situation in order to make a particular point.
I look forward to this bill’s referral to the Justice and Electoral Committee, which I am not on, and I look forward to hearing about the debate from my colleagues who are on the committee. I encourage people to make submissions on all of the detailed issues contained in this bill.
Dr KENNEDY GRAHAM (Green) Link to this
I have the light-hearted privilege of serving on the Justice and Electoral Committee, and I just cannot wait to look at the Criminal Procedure (Reform and Modernisation) Bill in detail! The stated purpose of the bill is to simplify criminal procedure in New Zealand. It is described, as least by the Minister of Justice, as comprising the most comprehensive overhaul of the New Zealand criminal justice system in half a century.
Specifically, the bill seeks to achieve five goals. We are told they are to reduce unnecessary delay and inefficiency of court processes; to avoid unnecessary stress to victims and others involved in criminal process; to eliminate unnecessary complexity in the legislation governing criminal procedure; to reduce shortcomings arising from piecemeal amendments; and to facilitate the use of new technology in the courts. Simplifying those criminal procedures, the Minister says, will result in 43,000 fewer court events each year, freeing up to 16,000 court sitting hours. It will save up to $24 million over 5 years, averaging $5 million per annum. In short, the legislation will address excessive delay, excessive complexity, excessive cost, and outdated legislation—so we are told. At face value, the Green Party is disposed to support the bill’s overall objective and five stated goals. Who would not, to the extent that the problems are valid?
The next question has to be whether there is any downside to achieving those goals, and, if so, whether that downside prohibits such support being acceptable. Let us analyse the bill, which runs to 526 pages, and which our colleague Mr Bridges has not read.
I will take this opportunity to commend the Minister for his energy and his commitment to criminal law reform. It has taken 2 years, more or less, of his time and I know that he is sincere in his efforts. But such commendation does not persuade us in itself, necessarily, to support the product we have before us. The Green Party will need to be satisfied that the achievements of the bill outweigh any costs it may contain—costs in terms of civil and political rights that might be forfeited.
The bill seeks to implement seven innovations. We simply have not had sufficient time to address them all thoroughly, and on that I will make a point. I respectfully suggest that it is not good enough on the part of the Government to submit a bill of 526 pages and expect it to be dealt with—given due justice—the following week. It was introduced on 15 November. If we add to those 526 pages the 20 pages of fact sheets, the 34 pages of the Attorney-General’s report, and the 33 pages of the regulatory impact statement, we have 613 complex pages to get through in 6 working days. That is no way to run a democracy, even on a bill’s first reading. It is enough to present, for the moment, an identification of our principal concerns, and to indicate that we look forward to exploring them in the select committee.
First, there is the election of a jury trial. This concerns the first set of proposals outlined in the bill, namely the categorisation of offences. The stated aim is to categorise criminal offences in a more simplified way. There are to be four categories of offences. First, those not punishable by prison can be tried by a District Court judge, community magistrate, or a justice of the peace. Second, those with prison sentences up to 3 years would be tried by a District Court judge—one of the controversial issues. Third, for those with prison sentences over 3 years the defendant can elect a jury trial. Finally, some in that third category will automatically be tried in the High Court by a jury. Those are cases of high public or symbolic importance, such as murder, or where the fairness or impartiality of one judge might be in question, such as judicial bribery.
The difference there is that rather than 3 years for the second category of offence, the current law stipulates 3 months. But clauses 6 and 9 of the bill as drafted, and its associated clauses, will result in this being extended to 3 years. We recognise that, as Sir Geoffrey Palmer said when he proposed the shorter term of 3 months, there is nothing sacrosanct about 3 months. Canada has 5 years for this category of offences, and in some Australian states it varies from 2 years to 5 years as well. None the less, we query whether the longer period will result in any efficiencies in the administration of justice, as seems to be claimed, and we query whether there is any other reason for extending the time period. I put it to the Minister that some people—perhaps all people, including the Minister himself—might feel more vulnerable if a sole judge were granted the power of prison sentence for up to 3 years rather than 3 months. Let us have statistics for the select committee on the number of people who have been sentenced to prison terms ranging between 3 months and 3 years, then we can analyse the situation in the select committee.
The second concern is about the right to be present. What we have with the second concern is the right of a defendant to be present at a criminal trial. As currently drafted, the bill violates the New Zealand Bill of Rights Act, section 25, namely the right to be present at a trial and to present a defence. Clause 128(2)(b) of the bill states: “if the court is not satisfied that the defendant has a reasonable excuse for his or her non-attendance, and the prosecutor is ready to proceed, the court must proceed with the hearing in the absence of the defendant:”, as noted by at least one colleague, Charles Chauvel. This remains a concern for us. What might be a reasonable excuse in the view of a defendant might not be so in the view of a judge. This is a clear derogation of an existing right. It is one thing for a defendant to waive one’s right to be present; it is quite another for a judge to pronounce that the defendant lacked a reasonable excuse. Whether the issue can be resolved in the select committee remains to be seen, but let us hope so.
The bill raises other issues, as well. I invite the Minister or any of his National colleagues who are yet to speak in this first reading to address the following: the onus of proof issue. The question of the reverse onus of proof worries many practitioners in the legal profession—that is to say, the plans to shift the burden of proof to defendants in specific fishery and civil aviation offences. Defence lawyer Marie Dyhrberg, for example, has said that the provision was a shift away from the principle of an accused’s right to silence and was a complete turnabout on the burden of proof. She says that at the moment we have the right to silence, and the presumption of innocence, and it is on the Crown to prove its case beyond reasonable doubt. What this provision will do, in her view, is to change the onus of proof. It means that the defendant will have to identify a defence before a trial.
The fourth issue is jury numbers. There is the question of the proposed reduction of jury numbers. Barrister Peter Williams QC said the proposed reduction in jury cases was a whittling down of the justice process, and that will lead to the deterioration of the quality of justice in this country. As Mr Williams has noted, the jury system is at the heart of New Zealand’s democratic justice system, and he says it is a shame to cheapen it just to save money.
By way of general comment on the bill, I note the comments of Christchurch lawyer Nigel Hampton QC. Mr Hampton has said he does not think the proposed changes will solve any problems. The bill’s aim, he observed, is to simplify the justice process, but with 526 pages it is not a simple thing at all. He said the number of pre-trial conferences and out-of-court discussions have been increasing over the past 20 years. New Zealand’s justice system was “clumsy and awkward”. He supports having just one court for all crime cases with specialised judges, which would be far more efficient. I advance this critique not to be oppositional for its own sake, but because in light of our concerns, and not least in light of these comments by respected members of the legal fraternity, there are serious issues that need to be addressed before the bill passes the threshold of acceptability. At the moment, in its current form, it does not appear to do so.
I challenge Government members to explicitly address the concerns stated here by the Green Party and clearly shared by leading legal figures, before this debate concludes today. Because of those concerns, we shall oppose the bill in the first reading. We look forward to seeing whether those problems can be resolved to our satisfaction in the select committee.
HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this
The Māori Party will be supporting the Criminal Procedure (Reform and Modernisation) Bill at the first reading, but at this stage that support is conditional on the sort of information we are likely to hear when it goes to the Justice and Electoral Committee. We support the notion of reforming the justice system. We support it not because I am saying so but because what the statistics say is true in terms of justice as it applies to Māori on the street. Lawyers in the House will know that when a Māori and a Pākehā are stopped on the street for essentially the same issue, to nobody’s great surprise the Māori is more likely to be arrested. When a Māori and a Pākehā end up going to court on the same kind of issue, to nobody’s great surprise the Māori is more likely to be convicted. When the issue of sentencing comes up for a Māori and a Pākehā who are up on essentially the same charge, to nobody’s great surprise it is more often the Māori who gets sent to jail. In terms of the length of the sentence when a Māori and a Pākehā are being sentenced on essentially the same charge, to nobody’s great surprise the Māori gets sentenced to a longer term in jail.
The Māori Party supports absolutely the need for a reform of the justice system at every level. Although this bill is a big fat report, we do not see anything in it that will affect the statistics I just mentioned. In the Minister of Justice’s opening address, he used the well-known phrase: “Justice delayed is justice denied.” I note that many of the clauses in the bill speed up the process. I also add that, therefore, from knowledge of the system, justice hastened is not necessarily justice confirmed. There is an aim to speed up trials and to have trials without the presence of the accused. I spoke in the debate on the Courts (Remote Participation) Bill, and I remember that the strength of opposition from Labour, in particular, and from the Greens and the Māori Party, convinced the Minister of the need not to be so hasty in going to trial without the accused being in the courtroom. I see that issue raises it head again in this Criminal Procedure (Reform and Modernisation) Bill. The Māori Party is hugely concerned about that issue, as well.
I know from understanding how the system works in a jury trial that it is far easier to convict people we do not need to look in the eye. It is far easier to convict people just on what we hear from others, and it is far easier to convict people when they are not present to give their side of the story. If trials of people who are not in the courtroom are allowed—and I note a comment from Mr Chauvel that the judge will not even have the right to determine whether that goes ahead; it will be the way it happens, simply because the legislation says so—then neither the judge nor defendants will even get a say as to whether defendants will participate in their own defence. Like Mr Chauvel, I also worry that when we talk about changing the nature of a judicial system that for all of its flaws—and Māori more than most know of its flaws—has been in existence for such a long time, there should be far more accountability for those changes than just the fact that the Government and one of its coalition partners can pass legislation that will have such sweeping changes. It will impact on so many people in terms of the law as it will continue in the future.
I also note that in speeding up the process to get people into court and speeding up the process to get people convicted, I have yet to hear whether the Minister of Corrections is about to launch another prison-building programme. I note that when the previous Labour Government began its prison-building programme—due to have been completed next year—the jails were already full because of a rotten judicial system. By 2009 they had already filled them for 2012, before the prison-building programme had been completed. If the process by which people are being sent to prison will be sped up even more, then we need to spend more and more of this Government’s money and more and more of taxpayers’ money building more and more jails for people who we absolutely know will be sent to jail. Unfortunately, most of them will be Māori.
We support the bill going to the select committee so that we can hear what concerns there will be, but I am very clear in stipulating that our support is only to the select committee, to ensure that more people can have their say on this legislation. We reserve the right to change our vote based on what we hear during those select committee hearings. Nō reira, tēnā koutou. Huri rauna, kia ora tātou katoa.
KANWALJIT SINGH BAKSHI (National) Link to this
Today we are debating the first reading of the Criminal Procedure (Reform and Modernisation) Bill. This bill will be a big step in reforming criminal procedures, thus reducing unnecessary delays and inefficiencies in our court processes. I congratulate the Minister of Justice, Hon Simon Power, on his thoughtfulness and action on this longstanding issue.
The National-led Government, under the leadership of the Rt Hon John Key, since it came to power, has promoted a number of changes in the justice system so that unnecessary stress to victims, witnesses, jurors, and other people involved in criminal processes can be avoided. The credibility of a Government is determined by an effective and efficient judicial system. We have to ensure that justice is delivered as soon as possible. We cannot keep on building new courtrooms and appointing more judges. We need to remedy the inefficiency in our system. This bill will help in freeing up thousands of sitting hours in the court every year. It will also bring about 43,000 fewer court events. If we talk about the savings in dollar terms, it is estimated that $24.3 million will be saved in the next 5 years.
This bill also has approval to permit courts to proceed in the absence of a defendant if the court is not satisfied that the defendant has a reasonable excuse for his absence. Another important change is to be sure of name suppression. The changes could allow publication of the names of defendants, or other details, or evidence in particular cases. Presently it is not clear why a suppression order is granted. The Government has already introduced a number of provisions so that justice can be delivered sooner rather than later. I am happy to commend this bill to the House, and look forward to participating in the forthcoming select committee process.
LYNNE PILLAY (Labour) Link to this
I stand to join my colleagues to speak on the Criminal Procedure (Reform and Modernisation) Bill. It will come as no surprise that along with my colleagues and, indeed, the Māori Party, we are supporting this bill to the Justice and Electoral Committee. I also put on record that we see that process as very important. This bill is a glowing example of how important the select committee process is, if ever there was one. We have heard most of the reasons from the Government side relating to support for this bill, and they are about efficiency and haste. We along with the Māori Party do not accept that haste should be the top priority.
We have some really good examples of haste being used, or a hasty efficiency process being used, in this House that have not seen justice served. If we look at the 90-day sack-at-will bill that was pushed through under urgency then extended under urgency in this House, the cutting of 4 weeks’ holiday, the abolishing of Environment Canterbury, and the Auckland super-city legislation, we could certainly argue how efficient and how quick the process was, but it would be very hard to argue from our point of view and the view of the majority of New Zealanders that justice was served. What is paramount, certainly, is efficiency, and we commend any efficiency in the system, but we also have concerns because what must be paramount is for justice to be served—not just seen to be served, but to be served—and for all New Zealanders to have confidence in New Zealand’s judicial system.
As I said, we will be voting for this bill. We acknowledge that it was the result of the Criminal Procedure (Simplification) Project, which Labour launched while in Government in 2007. It was carried out by the Ministry of Justice, but it also had the Law Commission alongside. The purpose of the bill is to set out the procedure for the conduct of criminal proceedings, allowing for electronic filing and management of the permanent court record, which is obviously very efficient. I have heard other speakers say before me that this bill is some 526 pages. I have to put on record that I have not read all 526 pages, but I know the select committee will be receiving a lot of advice and very detailed submissions. This bill will have to have very careful consideration. From Labour’s point of view, we will have to give careful consideration and have discussion within our caucus about some of our key concerns that my colleagues have already highlighted.
One of our concerns is that the Attorney-General, Christopher Finlayson, has released a scathing report on this bill, saying that it contravenes the New Zealand Bill of Rights Act in many ways. One of the concerns we have is allowing criminal trials to proceed without the accused being present and allowing the courts to order the retrial of an acquitted defendant if new evidence comes to light. I want to put on record that when we undertook the victims’ rights inquiry when Labour was in Government, one of the most compelling parts of the evidence we heard from many victims was about the anguish they were already suffering when they had in many instances lost a very dear member of their family or a friend, whatever the case may be, and the complexity and the delays that happened during the trial. Many of those delays may have been justified, but in many instances it would appear that they were not justified. So we understand from what victims have told us how difficult that can be, but we also want to see that justice is served and that there is a fair process. Delivering a hasty process that causes a defendant to not have a proper trial—a worst-case scenario—is in itself is a real concern.
Other things that we will be carefully looking at include putting the threshold for jury trials to proceed at 10 jurors. This bill will allow jury trials to proceed on a routine basis with as few as 10 jurors. In light of the most recent changes to the threshold for jury trials, which Labour supported, this change is a further curtailment of the right to be tried by jury. We hope that the Government will carefully consider this. We want to put on record in this House that at the select committee we in Labour and the Green Party, which is also opposing the bill, will be listening very carefully to submissions.
Another concern we have is the defence disclosure of issues, which is the requirement for the defence to identify and disclose any issues in dispute before a trial. We know that some in the legal profession have suggested that that would, in effect, be requiring the defence to help the prosecution build its case. We await with interest the views of the legal profession, and other submitters apart from the legal profession, at the select committee. There are the exceptions to the double jeopardy rule, which, as we all know, prevents people being tried again for an offence after being acquitted. The bill now provides that a person can be retried if new evidence comes to light. That is something that has to be carefully weighed up before we decide to overrule a really important current provision.
The bill also provides for proceeding when the defendant is absent. As I spoke about before, and as victims said in the victims’ rights inquiry that was undertaken, we know that delays in court proceedings probably cause the most stress and distress to victims. Without tying Labour into accepting this—there is certainly an understanding where there is no reasonable excuse from a defendant—this bill gives the discretion to proceed in the defendant’s absence where the defendant has a reasonable excuse for not being there. That seems to be grossly unfair, and the important principles of anybody being innocent until proven guilty and the right to have a fair trial are things that we in Labour have very, very serious concerns about.
We would argue that the bill is certainly not inconsistent with the way this Government upgrades or changes legislation, as it is piecemeal again. The Government could have looked in a bigger-picture way. It could start by implementing the Law Commission’s 2004 report Delivering Justice for All: A Vision for New Zealand Courts and Tribunals.
MELISSA LEE (National) Link to this
I rise in support of, and to take a short call on, the Criminal Procedure (Reform and Modernisation) Bill. Before I get going, I would like to note that I have just heard very distressing news that there has been a second explosion at the Pike River mine and that there may not be the possibility of the miners coming out alive. How distressing that news is. Technology is a wonderful thing—we can get news so quickly, and that enables us to pay our respects. It is awful to hear that news, and my heart and my prayers go out to those families and the community in Greymouth.
The main provisions of the Criminal Procedure (Reform and Modernisation) Bill work to try to reduce unnecessary delay and inefficiency in court procedures so as to avoid unnecessary stress to victims, witnesses, jurors, and others involved in criminal procedures. Earlier tonight Mr Harawira talked about his belief that justice delayed may not necessarily be justice denied. Let me reiterate an incident I had to deal with for a constituent of mine who had been a victim, and for a witness in the court case. I do not want to go into the details of the court case, but I can say that a victim who had been just standing was punched to a pulp for no known reason, and the witness wanted to appear in court. The witness is still yet to appear. It has taken more than 3 years for the witness to appear before the court to give their story and to get justice for the unprovoked attack.
We need to get our justice system right, so that victims can have their say in court to get justice. I believe that the provisions in the bill will go towards reforming criminal procedures to make the justice system more responsive to the needs of the victims and witnesses, and that has to be good. I have not been here in the House all evening but earlier a member from the Green Party said that this bill will reduce the number of court cases by 43,000. Between 1,000 and 1,400 fewer court cases will need to be designated for a trial by jury, and 300 to 600 fewer cases will proceed to a jury trial, and savings of $24.3 million will be made over a 5-year period.
I speak as someone who has been a victim and has appeared before a court as a witness. Mr Harawira said that not having the face-to-face experience of justice was not right, but for the victims, when the offender’s guilt is being proven, sometimes intimidation by the offender can have a detrimental effect for the court case. I experienced that personally. I feared it so much that I ended up moving my home. I did not want to live where I was attacked.
Perhaps when we get through all of this we will have proper justice and victims will feel safer in New Zealand, where we make sure that victims’ rights are upheld. I commend this bill to the House.
JACINDA ARDERN (Labour) Link to this
I am pleased to join my colleagues in commenting on the Criminal Procedure (Reform and Modernisation) Bill. It is a very significant bill, as indicated not necessarily just by the size of the bill itself but by the really weighty issues it addresses, and by the fact that it touches on some of the most sacred elements of our criminal justice system. That is why Labour is very cautiously supporting this bill through to select committee, so that we have the opportunity to give it the really hefty consideration it deserves. From our perspective as a party there will probably be a couple of really key principles we will be keeping in mind when considering the content of this legislation. They are the core principles we take into account when considering most justice bills.
They include, first and foremost, the notion of access to justice, which is the idea that our criminal justice system should keep in mind its interface with both the defendant and the victim. That means that justice should be speedy and efficient without compromising the second core principle, which is the importance of public confidence in our criminal justice system. I would hope that each and every one of us in this House, when approaching justice legislation, would keep in mind the perspective of the victim, and the possibility of being a defendant. We simply cannot side with either party when considering justice legislation; we must ensure that both defendants and victims are kept in mind when considering such weighty legislation. I fear that we may not be doing that in some of the provisions we are seeing early on, so we are approaching this bill very cautiously.
I want to touch on some particular elements of the bill, but before I do I will reflect on some of the context to this bill. It has been developed after some quite hefty consideration. In the past the Ministry of Justice has acknowledged that our current system suffers from excessive cost, complexity, and delays, which of course have an impact on defendants, victims, and other participants. But as my colleague Lynne Pillay mentioned earlier, there have been other opportunities for us in this House to deal with some of those matters through other initiatives that have not been taken up, some of them far less controversial. I believe that a bill relating to Family Court matters gave the option of a Family Court judge using judicial officers to clear some of the caseload they were facing. Of course those cases often involve children, so speed is even more important than usual in those cases. That bill has been passed, yet that power available to them is unable to be used because the Government did not believe that it was something that should be enacted, and I find that disappointing. In fact the Ministry of Justice told us that it was not a priority, yet that provision could have aided in removing some of the excessive delays we are seeing in our court system.
The Ministry of Justice probably would have also made the point about excessive complexity, delays, and cost, if it had been given the privileged opportunity to be the adviser when we considered the “three strikes” legislation, but, as we all know, for some bizarre reason it was the police who advised us on that important criminal legislation.
It was extraordinarily odd, and I wager that that was done because the police were part of the very small group in support of that legislation; the Ministry of Justice, I imagine, would have advised against it.
Coming back to this bill, I say that it results from the Criminal Procedure (Simplification) Project, which was established in October 2007, and was a collaborative piece of work between the Ministry of Justice and the Law Commission. We have seen a series of quite controversial recommendations translated from that work into this bill that we are considering. In fact, pointing directly to that is the fact that the Attorney-General, Chris Finlayson, has released quite a scathing report on this bill. He states that in a number of ways, by allowing criminal trials to proceed, particularly without the accused being present, and by allowing the courts to order the retrial of an acquitted defendant if new evidence comes to light, the bill is in contravention of the New Zealand Bill of Rights Act. That is interesting, given that he himself has been one of the individuals calling for drastic reform of our justice system. To have one of the individuals who have promoted reform then come out against some of these provisions points to the fact that we may not have got it right on every element of this bill, and we certainly will be applying very close scrutiny to our consideration of that.
Earlier this year we considered the use of video link technology in our court systems, and Labour spoke very strongly against the idea of having defendants able to access their own court case via a video link. From our perspective that did not hold true to one of the most important elements of our criminal justice system: the ability to attend one’s own trial in a substantive trial, not a procedural hearing. We will continue to hold that principle when considering some of these proposals.
I will touch very quickly on some of the most significant proposals, some of which have been canvassed by my colleagues. One proposal that I have already mentioned goes to the heart of the New Zealand Bill of Rights Act, and that is the change to the threshold for jury trials. I heard one member of the House—I believe it was Simon Bridges—refer to the idea of using a jury hammer to crack a nut. I think he was alluding to the fact that we are perhaps using jury trials for cases that he might consider to be insignificant, relatively speaking. Of course, that is taking the perspective of someone who is not a defendant in a case when considering whether a case is insignificant. When someone is before our criminal justice system, the case is significant. On every occasion, it will be a significant issue, particularly for that individual. Finding an appropriate threshold, where we remove that fundamental right, is a very delicate thing. Labour will be considering that proposal very, very closely, as we will the notion of proceeding with 10 jurors.
It was under, I believe, Phil Goff as the Minister of Justice that we had some considerable reform of the way our juries operated in New Zealand. At that point we probably got the balance right. Moving forward to these proposals, I would like to see some consideration as to whether those we have already gone through have been the success we needed them to be, and whether moving to allow jury trials to proceed on a routine basis with fewer jurors will provide the improvements to our system that the Minister of Justice assumes it will. I hold a bit of a question mark over that.
We then have the defence disclosure of issues—the idea that the defence would have to identify and disclose issues in dispute before a trial. I think, probably, on the face of it, those listening may assume that that sounds like common sense, but we have to be very, very cautious in the way we proceed with that significant change, as well. The same applies to exceptions to the double jeopardy rule. With reference to a court proceeding in a defendant’s absence, this bill gives not only the ability for a court to proceed in the absence of the defendant when there is no reasonable excuse for that absence, but also the power for the court to proceed even if there is a reasonable excuse. I am quite concerned—in the same way that we were concerned about audiovisual technology—that someone not being present when their trial is taking place, even if they have a reasonable excuse, undermines notions of natural justice. I think we should exercise extreme caution, again, with the notion of a reverse onus of proof.
I have touched on some of the key elements of this bill, to which Labour will be paying close attention. Again, that core principle for us will, of course, be access to justice. That includes efficiency, but also public confidence. Whether an individual member of the public is a victim or a defendant at any point in his or her life, our justice system must serve both, and that will be our focus.
HEKIA PARATA (National) Link to this
Tēnā koe, e te Mana Whakawā. Huri noa i tō tātou Whare, tēnā koutou, tēnā koutou, tēnā koutou katoa. Kātahi anō tātou ka rongo i te kōrero mai i Te Tai Poutini kua pahū anō. Te āhua nei kāre e ora ngā tāngata, nā reira, koinei te wā tuatahi māku hei tuku aroha ki ngā whānau, ki ngā hapori o tēnā moka o te motu me te tangi o te ngākau hoki ki a rātou i tēnei wā uaua. Nā reira, he whakaaro poto noa iho tēnei hei hoatu aroha ki a rātou katoa i tēnei wā. Hoki mai ki a tātou, tēnā tātou katoa.
[Greetings to you, Mr Deputy Speaker, and to us all throughout the House. We have just heard from the West Coast that there has been another explosion. It seems likely that there are no survivors. This is my first opportunity to extend thoughts of compassion to the families and communities in that part of the country. I grieve for them, as well, in this moment of difficulty. This is but a brief moment at this time to express love to them all, and now it is back to us, so salutations to you all.]
This is the first opportunity I have had to send my support and best wishes to the families of the miners in Te Tai Poutini, and to join with this House in sharing our support for them all.
Turning our attention to the Criminal Procedure (Reform and Modernisation) Bill, I am pleased to stand and take a short call on this legislation. The fact is that our system has been clogged for many years, and needs to be fixed. Over the last 10 to 20 years the law relating to criminal procedure has attracted increasing criticism. The principal statutes governing criminal procedure are out of date and excessively inflexible. It is unacceptable that there are at least 43,000 unnecessary court appearances each year, and that it takes an average of 16 months to complete a jury trial in the High Court, and 12 months in the District Court. National believes that justice delayed is justice denied. This bill will ensure that timely justice is delivered for victims, witnesses, defendants, and all of the community affected.
The key legislation currently in place dates back to the 1950s, and has been subject to years of ad hoc reform. We cannot continue to mask delays and inefficiencies in criminal procedure simply by building more courthouses and appointing more judges. We are committed to improving the criminal justice system, particularly for those who find themselves in it through no fault of their own, while maintaining a defendant’s right to a fair trial. We are confident this bill will achieve both aims. I commend the bill to the House.
Mr DEPUTY SPEAKER Link to this
The question is that the motion be agreed to. Those of that opinion will say Aye; to the contrary, No. The Ayes have it.
Hon ANNE TOLLEY (Minister of Education) on behalf of theMinister of Justice) Link to this
I move that the Criminal Procedure (Reform and Modernisation) Bill be considered by the Justice and Electoral Committee.
Mr DEPUTY SPEAKER Link to this
The question is that the motion be agreed to. Those of that opinion will say Aye; to the contrary, No.
Hon SIMON POWER (Deputy Leader of the House) Link to this
I raise a point of order, Mr Speaker. I do not have any problem with the motion; I apologise to my colleague. In respect of the vote, and in fairness to my colleague from the Greens, I had extracted him from the House to discuss recent developments that have come to the attention of the media in the last 20 minutes. The Green member was obviously not in the House. The Greens, as I understand it, are not supporting this legislation to go to its first reading, and I wonder whether the House would mind allowing the member to seek leave to alter the Green’s vote.
Mr DEPUTY SPEAKER Link to this
Unfortunately, I have already declared the result. The only way forward is for leave to be sought by the member for the vote to be put again. I have already cast the vote and announced it.
Dr KENNEDY GRAHAM (Musterer—Green) Link to this
With respect, I would like to put that request because this is an important vote. It is a very important bill, and we are recording the vote in good faith and with sincere intent, and we would like for it to be on the record. I seek leave for a party vote.
Mr DEPUTY SPEAKER Link to this
Leave is sought for that purpose. Is there any objection? There is no objection.
A party vote was called for on the question,
That the Criminal Procedure (Reform and Modernisation) Bill be now read a first time.
Ayes 110
- New Zealand National 58
- New Zealand Labour 41
- ACT New Zealand 5
- Māori Party 4
- Progressive 1
- United Future 1
Noes 9
Bill read a first time.