I move, That the Criminal Procedure (Reform and Modernisation) Bill be now read a second time. The Criminal Procedure (Reform and Modernisation) Bill underlines this Government’s commitment to modernise New Zealand’s justice system for the benefit of those who use it and are entitled to depend upon it.
New Zealand’s criminal procedure is outdated and cumbersome. The current system may be working well from the perspective of those who earn a living from it, but it is failing those who find themselves in our courts through no fault of their own. In the words of the late Chief District Court Judge, His Honour Russell Johnson, a lack of teeth in the current law has contributed to “an unacceptable degree of indiscipline, inefficiency, and delay within the criminal justice process, as well as, regrettably, injustice where exhausted witnesses have abandoned cases because of excessive time delays.”
This bill will fundamentally change criminal procedure, making criminal processes much more efficient and accessible. It will deliver timely justice and provide sufficient flexibility to meet contemporary and future expectations of court processes. We can never completely remove the distress and anguish that victims and their families experience as a result of offending against them, but through this legislation we can help them to move on with their lives by reducing and streamlining their exposure to the criminal justice system.
I would like to thank the Justice and Electoral Committee chair, Chester Borrows, for steering the committee through this 600-odd page bill. The Justice and Electoral Committee recommended a number of sensible clarifications and refinements, all of which the Government is adopting. The most significant changes recommended by the committee include widening the grounds for ordering a retrial for a defendant found guilty in their absence, clarifying that the court may not sentence a defendant in his or her absence for imprisonable offences, enabling costs ordered against a party for not complying with procedural requirements to be paid to people connected to the proceedings who incurred additional costs because of the non-compliance, removing the requirement that second appeals to the High Court and Court of Appeal must be on a question of law and providing that leave for appeal may be granted if the appeal is in the interests of justice, removing the reverse onus provisions carried over from previous legislation that the Attorney-General concluded were unjustified under the New Zealand Bill of Rights Act, splitting the bill’s single offence and penalty structure for publishing suppressed information into a two-tiered system to better reflect the levels of culpability relating to those actions, and removing the proposed offence concerning the liability of internet service providers for breaching a suppression order. The committee also recommended a number of minor and technical changes to the bill, which have also been adopted.
In addition to these changes, a number of further amendments have been made to the bill since it was reported back from the select committee. To this end, I would like to thank the ACT Party, United Future, the Māori Party, and Labour for their constructive approach to negotiations since the bill was reported back from select committee in July. Earlier today I tabled a Supplementary Order Paper—actually three, but one in particular—that will give effect to the changes made as a result of those negotiations. I am confident the additional safeguards we have developed strike an appropriate balance between time and cost savings and the defendant’s right to a fair trial.
The main changes contained in Supplementary Order Paper 282 are the removal of the requirement for the defence to identify issues in dispute pre-trial, setting the jury trial threshold at offences carrying a term of 2 years’ imprisonment and above, and amending the clause that gives the courts the ability to proceed in the absence of the defendant, so that the court’s discretion is limited to proceeding in procedural hearings where no determination of guilt or innocence will be made. In respect of substantive hearings, the bill will provide that if the court is satisfied that the defendant has a reasonable excuse for non-attendance, the trial must not proceed in the absence of the defendant unless the court is satisfied the defendant will not be prejudiced by his or her absence.
The bill also amends the reference to costs orders, to make it clear that costs orders against the defence or defence counsel for unreasonable and significant procedural delay are expected to be used rarely and only for significant procedural non-compliance. The bill also removes the word “substantial” from the miscarriage of justice test, and restores the current 6-month limitation period for the least-serious category 1 and 2 offences.
I am pleased to report to the House that, including the changes made in the agreed Supplementary Order Paper, the reforms contained in the bill have the potential to free up up to 9,000 court sitting hours each year by delivering benefits that include approximately 36,650 fewer court events, somewhere between 230 and 450 fewer jury trials, significantly, a 6 to 9-week reduction in the average time to complete a jury trial, and millions of dollars in savings.
In addition to the changes I have outlined, the bill will address concerns about name suppression for so-called celebrities by providing that there is no presumption of extreme hardship solely on the ground that the defendant is well-known or famous, or thinks they are.
I am confident that this bill will ensure more timely justice for victims, witnesses, and defendants, and will provide an enduring legislative framework for criminal procedure, which will ultimately enhance public confidence in the justice system. I would like to conclude by saying that this bill has been 10 years in the making. Various Ministers of Justice and Courts, over a long period of time, have worked on this legislation, and thanks go to them for trying to wrestle with this particular beast, which is not insubstantial in size and content.
In concluding, what we have is a bill that will be broadly acceptable to a vast majority of parties present in the House, and that is the way to move ahead with reform like this type of work. I am quite willing to conclude today by thanking those parties who have been involved in those discussions, and by thanking the Ministry of Justice, and the Law Commission, which acted as an adviser on the bill. I commend this bill to the House.
The Labour Party issued a minority report at the time of the Justice and Electoral Committee reporting back to the House, and we expressed concerns around a number of provisions in the Criminal Procedure (Reform and Modernisation) Bill. We were supportive of the general legislative exercise. As the Minister of Justice noted, we originated the reform process in the Criminal Procedure (Simplification) Project some years ago, and it is appropriate to pay tribute to the Hon Rick Barker as one of the Ministers who had carriage of that project. It is important to ensure that our criminal law is responsive and speedy. It is neither of those things, in its entirety, at the moment, and it is appropriate for Parliament to be acting to try to speed up the process, where it can be sped up.
But that cannot come at the price of the rights of ordinary New Zealanders, and the original proposal in the legislation to move the jury trial threshold, drastically, from 3 months to 3 years was not acceptable, particularly as it involved a proposal to amend the New Zealand Bill of Rights Act in a substantive fashion without appropriate prior consultation.
It was not appropriate to seek to make major inroads into the right to silence by requiring the defence to identify to the Crown in advance the basis on which it would be defending a charge. It is an ancient principle of our system of justice that the job of the prosecution is always to prove all the elements of the offence, and that is how it should be. The State has enormous resources, which it can deploy in the detection and punishment of alleged offences, and when it does so there has to be some balancing against that enormous amount of resources, and the right to silence is one of the most important of those balances.
It was also inappropriate to have a provision in the original legislation, and in the bill as reported back from the select committee, to allow the court to proceed in the absence of the defendant in too wide a series of situations. The ability to deploy costs orders against the defendants or their counsel—was of real concern. There were also real concerns about the circumstances in which a retrial could occur: a miscarriage of justice had to be “substantial” in order for there to be a retrial. Well, in our view, a miscarriage of justice is a miscarriage of justice. It should not have to be substantial, at all, to merit the right of citizens to be able to get the case against them re-presented.
So those were concerns that we expressed during the select committee process. We expressed many of them in our minority report, and we expressed them in correspondence to the Minister. I acknowledge the other parties in the House, particularly the ACT Party and the Māori Party, which eventually joined in our expression of concern. They made their own separate representations, but they were along similar lines, and they were right to do so.
So it was that we managed, after a period of time and some negotiation and an exchange of letters between the various parties involved and the Minister, to come to the situation that we have today, which is a better bill. It is a bill that now has a jury trial threshold of 2 years, not the 3 months as the law currently is, and not the 3 years that was proposed in the legislation. Now, there is no great science, I have to say, behind the suggested 2 years, but a simple examination of the Crimes Act shows that there are number of offences where we could draw a line about what is serious and what is not, such as male assaults female, where there will now have to be a jury trial if the defendant so elects. That was not the case under the original proposal. I questioned at the time at the select committee whether we were really getting appropriate analysis from the officials about what savings in time and cost we would actually see by moving the threshold as originally proposed. The Minister has made some estimates in his second reading speech about what savings will now result. We will have to see about that, but I think the threshold is better at 2 years than at 3 months.
I do remain concerned that we do not have a convention in the House around amending the New Zealand Bill of Rights Act. This is only the second time that the Act has been substantively amended during the time that it has been in force. The last time was when we expanded the rights of New Zealanders by adding to the prohibited grounds of discrimination contained in section 19. We are taking away rights through this amendment, and the process still leaves me quite disquieted. We have to do better, and, in fact, what we need to do, I think, as a Parliament is finally bite the bullet and entrench the Act, so that this sort of process—this auction of provisions in the legislation—cannot continue to occur.
I am glad that the infringements concerning the right to silence have been dealt with. I am glad that the court’s ability to proceed in the absence of the defendant has been constrained. I am glad that the use of costs orders has been considerably constrained, and I am glad about the changes to the wording on miscarriages of justice—the requirement that they must be substantial. We do have a better bill as a result of having safeguarded some fundamental rights through the agreed amendments, which the Minister has foreshadowed.
What I want to do is to foreshadow some further amendments. When I communicated to the Minister my caucus’s agreement to the changes that we negotiated, I reserved the right to move some further amendments, and I will be tabling a further Supplementary Order Paper during the Committee stage of the bill. I want to just deal very briefly with what those further amendments will do, and I do this on the basis of encouraging other parties in the House to consider the changes with an open mind.
I do think that there are some provisions that could be strengthened around the trials in absentia issues. I think we could have a better procedure for on-the-spot summonses. I think we could deal in a better way with costs orders and factoring in procedural non-compliance at the sentencing stage, which the Chief Justice was very critical of, and which still survives to an excessive degree, in my view, in the bill. We have a really good system in this country now, but it is an informal system, where a judge can give a sentencing indication. Defendants can say “Well, I quite like the sound of that. I’ll avoid a trial and simply take the sentencing indication.” That saves a lot of court time, but it is an informal system. I think we should put it on a statutory basis. We should probably limit the ability of the prosecution to obtain adjournments in some cases—again, if we want to actually move the system forward on a speedy basis. There probably should be an end to the somewhat dated provisions that we have around when one can and cannot address a judge about the evidence. But those are amendments that I will put forward at the Committee of the whole House stage.
The Minister mentioned that he thought the changes before the House would result in 36,600 fewer court events, a saving of between 6 and 9 weeks in the conclusion of jury trials, and many millions of dollars of savings. He also talked about an enduring settlement around speeding up our criminal law and simplifying it. I am afraid those claims remain to be tested, and I am, unfortunately, a bit sceptical about whether they are right. I think we need to undertake much more thoroughgoing reform in our criminal justice system, starting with updating the now out-of-date substantive statutes from 1957 and 1961, and then dealing with the procedural and evidential issues. But those are questions for another day. It is a better bill than where we started, and on that basis I commend it to the House.
I start by congratulating the Justice and Electoral Committee and those members who engaged fully in respect of the consideration of the Criminal Procedure (Reform and Modernisation) Bill, particularly on the way that there was cross-party debate and engagement in respect of these matters by the Labour team, led by Charles Chauvel and supported by Carol Beaumont and Carmel Sepuloni, and the New Zealand Green Party, represented by Dr Kennedy Graham. The National members—the deputy chair, Simon Bridges, Paul Quinn, Kanwal Bakshi, Hekia Parata, and then Amy Adams—contributed well, too. It is great to be part of a committee that has worked well together over 3 years and has processed a large amount of legislation. I think those members can be pleased and satisfied to see their fingerprints all over the various legislation that we have transacted in. It is legislation that is better for the time it has spent before the committee.
I believe that from time to time the law needs reforming and that conventions need questioning. I do not believe we have a situation where the rule of law will stay the rule of law for ever, and it should not, because the circumstances of those appearing before the court, on either side, and of those presiding over the court change. It was interesting to note, for instance, that a submission made by the late Chief District Court Judge was that we should extend the sentence threshold for jury trials to 5 years, which ran at odds with a number of other submissions. Certainly, it was at odds with where the bill has ended up.
There were also speeches given by the judiciary. I am thinking of Justice Bruce Robertson and a speech he made that talked about the need for, and the sensibility of, identifying issues. However, it is a fact, in making criminal law, that there is a need to have some consensus not only because of the numbers in this debating chamber but also because of the need to have an enduring criminal law so that people understand the law they have to live under. It is not a branch of the law that can be chopped and changed with changes in Government. So I am pleased to see that we have come to a place now, after the debate through the committee, the changes made through the committee, and the negotiations that have gone on since then in order to bring the bill to the place where it is today, that has seen some changes and some concessions made by parties on both sides of the House.
Whereas I agree that justice delayed can be justice denied, I do not agree that justice sped up is necessarily any form of justice, at all. I agree with the previous speaker, Charles Chauvel, that we need to ensure that cases are explored and that people are given the opportunity to present cases in the way that they wish to in cases that are fair to them. It is the sad case that quite frequently the question most asked in courts by the defendant of his counsel is in the order of: “What just happened?”. That should not be the case.
But I am pleased to see that a number of these provisions will expedite justice. The bill will ensure that provision is given for cases to be heard, for them to be well considered, and, at the same time, for them to be able to proceed in a timely manner. I commend this bill to the House.
I particularly want to address a matter of process in respect of the Criminal Procedure (Reform and Modernisation) Bill, which is probably not surprising, given that it is a process bill. I think it is important that when we are reforming and modernising criminal procedures, as this legislation does, we are really careful about some of the underlying principles against which we measure our own system of justice. These principles have really stood the test of time. Sometimes I am concerned that there are those of us who have less of a constitutional interest in the law, and we forget the importance of these principles.
I think that the retirement of Sir Geoffrey Palmer as a sitting member of this House marked a transition in our history in that regard. With Sir Geoffrey, we actually had somebody who was incredibly adept and knowledgable about our constitutional framework, and was always alert to these matters. That is why I am so proud that my colleague Charles Chauvel has taken the lead role in justice matters on this side of the House. I believe that the way he has handled this particular matter to ensure that those principles are protected in the legislation going forward—not as reported back from the Justice and Electoral Committee but by way of amendment by a Supplementary Order Paper from the Minister—is something that we owe him considerable thanks for. I want to sort of formally recognise that credit must be given where it is due.
I have in my hand three items of correspondence, which I believe really summarise the fact that this Parliament can do things well when we have a Minister and an Opposition spokesperson who are able to work collaboratively on such issues. The first letter is dated 8 September this year, and it is from the office of the Hon Simon Power, addressed to our spokesperson Charles Chauvel. The second letter is a response from Charles Chauvel, dated 10 September 2011. The final letter is a response from the Minister back to Charles Chauvel, basically setting out the detail of the collaboration that has produced the result we will deal with when we get to the Committee stage of this bill.
The point the Minister made in his letter of 8 September was that he advised Charles Chauvel that, in fact, the Government had the numbers to pass the legislation. But he felt persuaded that it was important to obtain broad-based political support for such a measure, and, therefore, he wanted to respond to the particular issues Charles Chauvel had raised on behalf of the Labour Opposition. I think that is an incredibly powerful message and one that I hope this House takes some recognition of. I have enjoyed a similar working relationship with the Minister in his role as the Minister of Commerce, and I think that this has to be the way of such measures in the future. There is a range of issues on which we ought to be able to work much more collaboratively, rather than leaving it to a negotiated agreement post the report back from a select committee.
Large Supplementary Order Papers are always fraught, as I found out with some of the financial advisers legislation I was responsible for, but I also think that some of the issues that Charles Chauvel has raised, which he will also be introducing by way of Supplementary Order Paper, are important, too. I hope that the Government decides to continue that whole approach on collaboration and looks at some of the issues that Mr Chauvel will raise. The one I wanted to comment on briefly was that of placing the judge’s sentencing indication on a legislative basis. I believe it is much more preferable for the judge’s obligations in that regard to be set out in statute, rather than just relying on a case by case situation.
I have a constituent who felt forced to change his plea to guilty when the judge said that he had no compunction about sending a tetraplegic man in a wheelchair to jail. The judge had made it absolutely clear that he felt that my constituent was guilty. I know the full circumstances of that case. I know that my constituent wanted to plead not guilty and that he had every ground for pleading not guilty, but he felt he had no choice because of the degree of pressure he was placed under.
I think it is important that that kind of issue is placed firmly in the legislative frame, and, therefore, I think we would find fewer difficulties in the future. I hope that the Government looks seriously at the Supplementary Order Paper that Mr Chauvel will put forward on behalf of the Labour Opposition. Certainly, on the basis of the Supplementary Order Paper that the Minister has indicated, which has now been tabled in the House, we will be supporting this bill.
Let me begin by commending the Minister of Justice, Mr Power, for his commitment to concluding the 10-year project that this is for reforming the framework governing criminal procedure in this country. It is nothing short of herculean and I salute him for his ability and his determination. His Government will be the poorer for his departure. I pay tribute, in particular, to the substantive changes he has made to the Criminal Procedure (Reform and Modernisation) Bill within the past week. Although these were made to some extent under political duress, as it were, he none the less has shown flexibility and courage in taking this latest initiative. It seems that most of the parties that were earlier concerned with some of the provisions of the bill, and were disposed to oppose the bill as a result, have swung in and indicated their support. We respect their decisions.
For the Green Party, we have studied the changes in the short time permitted and we wish to be positively disposed towards the bill, yet we remain obliged to sift the changes in the context of our stated opposition to the provisions that have given us concern before. We had identified a longer list than the other parties. So let me proceed systematically through our list, but first let me offer some broad philosophical comment, essentially in response to the broad comments made by both the Minister this afternoon and Labour’s Charles Chauvel.
The purpose of this bill is to ensure that criminal prosecutions are conducted fairly and without unnecessary delay or stress for victims and witnesses. The bill thus seeks a balance between efficiency and fairness. Efficiency and fairness are discretely different qualities. The first is instrumental. It is a means to an end. It has to do with the operation of machinery—in this case, the judicial machinery. In terms of morality, it is neutral. History shows that humans can be efficient in doing wrong as well as right. The second is normative. It is the goal itself. It has to do with the purpose that the machinery is designed to serve. In terms of morality, it is positive. History shows that humans are capable of doing right, but only when its component qualities are enshrined in principle and when those principles are protected by safeguards. That is why almost all societies entrench the most fundamental of their cherished principles.
I noted Chester Borrows’ comment a moment ago about the need for the enduring nature of criminal law—that justice sped up is no justice at all. We agree. So when we judge this bill, we may not engage in a free-market trade between efficiency and justice. We can strive to be as efficient in our judicial system as possible, but not at the expense of fairness. We may strive for optimal efficiency within the perimeter of fairness, but we may not breach that perimeter for the sake of any marginal, incremental efficiency. At the perimeter of fairness, the marginal utility of efficiency is zero. Justice is facilitated by efficiency, but it is composed of fairness.
I listened to the Minister this afternoon in his thoughtful introduction of the bill today. He spoke of the unacceptable delays and the exhausted witnesses. We hear the Minister. I noted that his stated aim was to strike an appropriate balance between a reduction in costs and the right to a fair trial, but that balance may be influenced by whether we are focusing on violent crime or civil disobedience. So when the Government extols the merit of ensuring 43,000 fewer court events each year—12,000 fewer jury trials; some 500 fewer cases proceeding to jury trial—the Greens respond that this greater efficiency is laudable only if the principle of fairness remains unsullied.
Now let us consider whether this is the case with the bill as reported back from the Justice and Electoral Committee and as amended by the Minister in the Supplementary Order Papers that he has circulated in recent days. The Minister has made four changes, which we think are generally worthy of support. These are, in respect of the right to silence, dropping the requirement for the defence to identify in advance the issues it intends to dispute; the significant softening on the issue of procedural non-compliance; the softening, in clause 236, of the reference to miscarriage of justice through the deletion of the word “substantial”; and the change in the jury trial threshold to 2 years, which still requires an amendment to the New Zealand Bill of Rights Act.
We note that similar jurisdictions such as Canada have higher thresholds, such as 5 years, so we accept that there is nothing sacrosanct about having 2 years, as such. We note that although many offences carry a 2-year penalty, in practice the election of trial by jury in such cases is rare. I note that the Law Society supports having a 2-year threshold. I further note that the Minister has dropped the reference to exceptional circumstances. We concur with Charles Chauvel this afternoon that the New Zealand Bill of Rights Act should be entrenched.
There remain three issues that the Minister’s recent amendments have not addressed and about which we still have some concerns. First, there is the time extension for laying charges; secondly, there is the issue relating to trials in absentia; and, thirdly, there is the issue of aggravating factors in calculating the sentence. Clause 22 extends the time for laying a charge from 6 months to a year for lesser offences, but people should not be required to find out a year after an incident whether they are to face a charge of drink-driving, a minor assault, or property damage. Not only is it a matter of personal stress but also it would tilt the judicial terrain against the defendant, whose poorer recall of an incident after a year has elapsed would favour the prosecution.
Clause 128 relating to trials in absentia could usefully be revisited. I appreciate that the Minister has moved to modify the original provision, but there remains a problem. We still face the situation that this clause allows when a defendant could have a reasonable excuse for not being present, yet the hearing could continue because the judge believes that the defendant would not be prejudiced.
Clause 431 would still require a judge to take into account some procedural non-compliance behaviour as an aggravating factor in determining the sentence. We recognise that in the Sentencing Act some aggravating factors may already be taken into account. These include the use or threat of violence or a weapon, offending while on bail, particular cruelty, abusing a position of trust, premeditation, and previous convictions. But in the Green Party’s view, procedural non-compliance falls into a different category. It should not be taken into account when a judge is determining a sentence. The defendant should be sentenced solely on the weight of the crime and the related factors I have just identified, which are substantively related to the crime itself. Procedural non-compliance should be dealt with through procedural ways, not through a penal consequence in terms of incarceration.
We shall be submitting our own Supplementary Order Papers on these three issues in order to remove our last issues of concern. We still retain the hope that the Government can enter amendments that would enable us to support the bill in its final stages.
The progress of the Criminal Procedure (Reform and Modernisation) Bill has been a fascinating insight into the politics of compromise. I say from the outset that the purpose of the bill is one with which we in the Māori Party have no argument. The intention of the legislation is to simplify criminal procedure and provide an enduring legislative framework that is fair, reduces unnecessary delay, is flexible, and is able to take advantage of technological developments.
The Māori Party supports having an efficient and effective justice system. By implication, therefore, the party supports the bill’s overall aims of modernising and speeding up the criminal justice system, while ensuring a defendant’s right to a fair trial. This last issue—the right to a fair trial—is where the politics of compromise has come to the fore. I refer to a quote from Gilbert Chesterton: “Compromise used to mean that half a loaf was better than no bread. Among modern statesmen it really seems to mean that half a loaf; is better than a whole loaf.” Unfortunately for Mr Power and his Government, but fortunately for the Māori Party, that is very much the case for this bill—that is, half a loaf is better than the whole loaf.
Mr Power has had to significantly compromise the substance of this bill in the light of concerns raised by the Māori Party, and, of course, by other parties around this House. We want to acknowledge the spirit of cooperation demonstrated by Mr Power in his negotiations with us, and the efforts that he went to in order for this bill to proceed, so we welcome the decision to remove from the bill the requirement for a defendant to identify issues in dispute before the trial—that is, the right to silence provision. The “half-loaf” for Mr Power has meant retaining the right to silence, lowering the threshold for the right to a jury trial from 3 years to 2 years, and making changes to rules about non-attendance in court. That is much better than what was originally conceived, which would have removed the right of an accused to remain silent and not have that held against them.
The Māori Party could not have supported clause 64 of the bill, which would have required criminal defendants to disclose their defence to the prosecution before trial. In making our position clear, we were guided by the United Nations Declaration on the Rights of Indigenous Peoples, particularly article 1: “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms …”. The original form of the bill eroded the right to be silent, and it would have made Aotearoa one of the few nations in the world to take it away.
The other major issue for us was the ability of the court to proceed in the absence of the defendant. Of course, it is much easier to convict someone if that person is not present to defend his or her case. But for us it is a matter of out and out justice: the right to be heard, to defend oneself. It is hard to understand how the Government could expect to gain support for having hearings proceed without the presence of the accused.
The Attorney-General concluded that the particular provisions reversing a person’s right to be present at his or her own trial were inconsistent with the rights affirmed by section 25(e) of the New Zealand Bill of Rights Act. Section 25 relates to the minimum standards of criminal procedure, and it states boldly: “Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: … (e) the right to be present at the trial and to present a defence:”. Part-way through the negotiations, the Minister of Justice attempted a partial accommodation by seeking to replace the wording “must proceed” in clause 128 with the new wording “may proceed”. The Māori Party was not satisfied that the proposal was sufficient to allay the concerns we had around the trial in absentia proposal, so we advised the Minister that we could not agree to the inclusion of such a contentious proposition. We felt we were on good grounds. I return again to the comment of the Attorney-General: “The right of an accused person to minimum standards of criminal procedure is a fundamental human right recognised by article 14 of the International Covenant on Civil and Political Rights … and affirmed in [section] 25 of the New Zealand Bill of Rights.”
Although, no doubt, the intention of the proposal to minimise delays and reduce inconvenience and stress to victims is one that we can fully understand, it does not justify moving away from the basic human right that defendants need to be present to ensure that they are aware of what the case is against them, for a start, and then know how their case is proceeding. In sum, we have been strongly opposed to the notion of presupposing that a trial can be undertaken without the accused being present. Although we understand and appreciate the frustration of delays caused by defendants failing to attend a court hearing, we believe that the right for a defendant to be present at trial must be protected. There must be other approaches that can be taken to ensure that defendants are in attendance, other than resorting to the most Draconian measure of having a trial proceed without the accused being present. In light of our concerns, we were pleased with the compromise position from Mr Power that will limit the discretion of the court to proceed to procedural hearings only—that is, only those hearings where no determination of guilt or innocence will be made.
Finally, in reference to the punishment of counsel by use of costs orders, we take note of the advice that the court already has some limited discretion to impose court costs on counsel and defendants who fail without reasonable excuse to comply with procedural requirements. We believe that there are sufficient professional avenues in place to ensure that high standards are upheld by defendants and lawyers. We do not support the punitive approach of threatening costs, as we cannot see that such an approach will, in itself, encourage better practice. We do, however, share the concern of the Government that lawyers must be able to be held to account for the services they provide for their clients, but we suggest that the professional associations are the right and proper body to do this. Given that the provisions are already evident, we do not accept that there is any need for the costs order provisions contained in the original bill. However, we have again accepted the compromise put forward by Mr Power, in terms of amending clause 361 to make it clear that such orders are expected to be used rarely and only for significant procedural non-compliance. According to the Minister, this will set a very high test for the judiciary in deciding whether to make a costs order.
The final point of concern is the jury trial threshold. The bill originally sought to raise the threshold at which a defendant could choose a jury trial from offences carrying a penalty of more than 3 months’ imprisonment to offences carrying a penalty of more than 3 years’ imprisonment. It was noted that this one change might result in up to 1,400 fewer cases needing to be designated for trial by jury. Our concern, however, was that best expressed by the Dunedin Community Law Centre, that the removal of the right to trial by jury might mean that some people may think that “justice has not been served and [they] may feel vulnerable having a sole judge grant the power of a prison sentence.” The Minister has removed the exceptional circumstances test and is now proposing to set the jury trial threshold at 2 years, which, although not optimal, is still better than the 3 years originally proposed.
We want to ensure that the reforms will ensure more timely justice for victims, witnesses, defendants, and the community. We are confident that the changes accepted into law—even under compromise—will allow us to support this bill.
The Criminal Procedure (Reform and Modernisation) Bill is an excellent bill that will produce an enduring framework for criminal procedure in this country for many years to come. As a former criminal lawyer who has done more jury trials than anyone else in this House, I will make some comments that I hope will be helpful and of some deeper truths.
I have thought a lot about the 3-year threshold for jury trials, which is one of the two or three things that have caused some stir in the media. My view, having thought about this, is that the jury trial is not a fundamental human right, but in fact we, as New Zealanders, do have a fundamental right to a fair trial, and, as in other countries, a judge-alone trial can produce that. I certainly accept that jury trials have a deep history in this country that goes back to the United Kingdom. That history runs very deep, so I accept there is an expectation that for serious criminal cases there will be a trial by one’s peers.
The question then becomes where we should set the threshold. Borne out by the Justice and Electoral Committee, my view is that that is somewhat arbitrary. I have put to the Bar, to members of the legal profession, the question of whether the threshold should be 6 months, 7 months, 8 months, 2 years, or 5 years—and in my view the answer came down to their gut feeling. Certainly, I think most would agree today that 3 months is too low. Some—myself included—might say that 2 years is too low and 5 years is too high, but it is an arbitrary matter. What I would I say, though, is that in matters of criminal justice we want to get beyond platitudes about saying what the threshold must be, and get at the deeper truth about what it is all about. What we are really talking about when we talk about jury trials and the right to having one is the right to having a trial by one’s peers on the most serious of cases—not on the theft of a pencil sharpener, as some would have us believe.
I also think that the lack of a mature debate about other aspects of this bill has been somewhat disappointing, such as the elements in dispute, which other parties have talked about in this House. That has been caricatured as a debate about the right to silence, but in fact the provision in the bill, as modified by the select committee, was to do with elements of the offence. There is no question about the need to give evidence at any stage in the proceeding, yet the debate has been caricatured and reduced to a mantra by some in the Bar, and by some in the Opposition. I hope that when we discuss these kinds of serious issues in the future we might be able to get beyond that, to the deeper truths of what is at stake, because criminal justice and procedure is not, as some at the Bar might think, a game with something to be gamed. It is actually a very serious matter whereby we seek truth and we seek justice. The procedures should be servant to getting to the truth and not just to something to be gamed.
On the whole this is an exceptionally strong bill. I hope that when we discuss these things in the months and years to come, we will be able to look past the mantras to the fundamental truths.
I am rising as a member of the Justice and Electoral Committee to speak on the Criminal Procedure (Reform and Modernisation) Bill, which Labour is supporting now to go to the Committee stage. There has been quite significant debate over this bill, and although I agree with Mr Bridges that this is not about a game, I think perhaps that my view on this bill is somewhat different. I think at stake are some fairly fundamental protections for people to ensure that they are treated fairly within the justice system. That is not a minor matter; that is actually a very serious matter, which is why this bill has become so controversial, and why the Government has struggled to get support to move this bill along. I do not think that everybody has been playing a game; I think there have been really fundamental issues at stake.
The bill contains a major overhaul of criminal procedure in New Zealand—there is no question about that—and Labour supports the need for a substantial overhaul of that criminal procedure. In fact, in October 2007 Labour established a review of criminal procedure in New Zealand, which was undertaken by the Ministry of Justice in collaboration with the Law Commission.
We voted for this bill to go to the select committee and gave substantial and serious consideration to its features. It is a substantial bill—526 pages long. As Chester Borrows indicated, the select committee has worked well together, and it has been well chaired by Chester Borrows. But I also note here that Charles Chauvel has played an exceptionally important role in both the select committee process and the hearing of submissions—in teasing out what was being said by the various submitters and in looking in depth at the implications of this bill—and in the role of getting us to the point we are at now, where we still have a bill that we can proceed with. I acknowledge the intellect and integrity with which Charles Chauvel has dealt with this bill.
As I said, the bill was stalled in Parliament because of opposition. That opposition was substantial, and it was not that people were opposing the bill just for the hell of it. The Government could not—and did not, in the end—ignore the substantial opposition to what was controversial. An increasing number of legal experts were indicating concerns about policy, and about the bill as it stood. That included the New Zealand Law Society, the New Zealand Bar Association, and the Criminal Bar Association of New Zealand. That opposition also followed criticism from the Chief Justice and the late Chief District Court Judge on aspects of the bill, so we are talking about a fair weight of opposition to the bill as it was.
We certainly agree that the principal statutes governing criminal procedure are out of date and excessively inflexible; indeed, there are still things to be done in that regard. In my role as Labour’s spokesperson on women’s affairs, I am certainly very mindful of the need for victims of crime not to be unduly disadvantaged by an inflexible, out-of-date, and slow criminal justice system. But we did not believe that the bill as it stood would achieve the intended reforms, and, as indicated, we had serious concerns about the implications of the bill for the public’s access to justice, as it was reported back.
We had quite a substantial minority report that outlined those objections, which included one about the threshold for jury trials. Simon Bridges, in the contribution he just made, seemed to think that that matter was not so significant, but in fact jury trials are a fundamental part of our current system. We cannot start to move the bits without looking at their wider implications, and we had many people come to our select committee and talk about one specific point—the threshold for jury trials. In the end, it is, as one person described it, probably one of the most fundamental parts of our democracy, because it is where—directly—citizens get to have a significant say on what happens to another citizen of this country. The consequences, of course, of going through the criminal justice system can be very severe, both in terms of reputation and also in terms of incarceration—the actual taking away of a person’s liberty. These are fundamentally important things, and the importance of jury trials is a cornerstone of our system as it currently stands.
Our minority report also looked at issues around defence disclosure, cases proceeding in the defendant’s absence, and compliance cost orders. Those were probably the major areas, so we are pleased that at the Committee stage the Government intends to introduce a Supplementary Order Paper that will address those concerns. We look forward to that, and as Charles Chauvel has indicated, we will be putting forward further matters in a Supplementary Order Paper at that point. They will include things like trials in absentia, and sentencing indications, which, as Mr Chauvel mentioned, could perhaps be formalised in some way, because they appear to be working well.
We agree that this legislation was needed, but believe that it did not do the work in a manner that was appropriate. In fact, it led us down the track of some things that even the Attorney-General had quite a scathing report on, in terms of this bill, which said that it quite unjustifiably contravened the New Zealand Bill of Rights Act in a number of ways, including the allowing of criminal trials to proceed without the accused being present, and the allowing of courts to order the retrial of an acquitted defendant if new evidence came to life. These matters, when the Government’s own Attorney-General is quite scathing about them, are serious, so we are glad that we have moved this on to this point.
I look forward to the Committee stage of this bill at some point. But I do think we all need to recognise that there is more that needs to be done if we are seriously going to address the problems with the current criminal procedure system, which are excessive cost, excessive delay, excessive complexity, and an outdated legislative framework. But to deal with those matters, especially that last one—the legal framework—we are getting into the territory of fundamental rights and the very, very serious matters that form the basis of our legal system. We will need to make sure that any reforms adequately take account of those things. Thank you.
I am particularly proud to stand and take a call this afternoon on the Criminal Procedure (Reform and Modernisation) Bill on behalf of the ACT Party. The reason is that the bill we are debating this afternoon is substantially and fundamentally different from the bill that was reported back from the Justice and Electoral Committee. One party more than any other party in this Parliament has contributed to that, and that is the ACT Party. This afternoon I intend to explain to this House and to New Zealand why that is so.
There is much, much good about the provisions in this bill. Without doubt we acknowledge that we need to deal with excessive delay, we need to deal with excessive cost, and we need to modernise the criminal justice system. There was much in this bill as reported back to the House in July that all parties in the House agreed with. However, there were some fundamental disagreements, and those were ideally set out in the Labour minority report.
We have seen the Minister of Justice this afternoon identify the six major changes he intends to incorporate into the bill by way of Supplementary Order Paper. Although I intend to deal with three of them in some depth, let me just summarise the six key issues that the Minister of Justice advised this House of earlier this afternoon. First, he said that he intended to remove the issues in dispute provisions; secondly, he made a change to the jury trial threshold, from 3 years down to 2 years; thirdly, he changed the procedures that relate to trying a defendant in absentia; fourthly, he made changes to the costs order provisions; fifthly, he changed the basis for a miscarriage of justice from “a substantial miscarriage of justice” to “a miscarriage of justice”; and, finally, he changed the threshold back from 12 months to 6 months in the case of minor offences. He highlighted to the House the six major changes.
What I say to New Zealand this afternoon is that this bill as reported back to this House—all 640 pages—was reported back to the House by the Justice and Electoral Committee with the recommendation that the bill be adopted. As the Leader of the ACT Party, as the leader of the party with which the National Government has a confidence and supply agreement, I was asked by the justice Minister, by Mr Power, in his office to provide him with the five votes needed to pass this bill. On behalf of the ACT Party, I was asked for the ACT Party’s support to pass this bill. I have no doubt that had I given that support in August, this bill would have been passed. It would already have passed through this House, but it would have passed in a substantially different form. Although the Supplementary Order Paper that makes those six major changes is but four or five pages long, the provisions contained in just those four or five pages substantially change what is in the initial 640 pages. I make it absolutely clear to New Zealand that when I took this back to the ACT caucus, ACT’s five MPs were absolutely united that they were not prepared to support this bill in the form in which it was sent back to this House—absolutely united.
I have identified the six major issues that the justice Minister has already mentioned this afternoon and said that he has changed. I will focus on three of those. The first one is the requirement to identify issues in dispute. What does that mean to most New Zealanders? What does it mean to have to identify issues in dispute? I suggest that for probably 99.9 percent of New Zealanders, it means very little, but it actually goes to the heart of our justice system. Most New Zealanders know that when a person is charged with a criminal offence, it is up to the State to prove the case beyond all reasonable doubt—beyond all reasonable doubt. There is a massive mismatch between the resources of the State—the police, the investigating forces, the Crown prosecutor’s office—and a defendant. But it is up to the State to prove the case. The defendant, under our constitutional democracy, is not required to do anything to assist. Under current conventions the defendant is not required to assist in his or her prosecution. The defendant has the fundamental right to remain silent. It is up to the Crown—it is up to the police—to prove the case.
In the bill that was reported back to the House in July, the National Government proposed to change that fundamental right. It proposed to take away one of our most fundamental rights and freedoms. It proposed to take away the right to remain silent and to take away the requirement for the State to prove beyond all reasonable doubt that a case had been found against a defendant.
When I listened to the comments of Simon Bridges this afternoon—and I am very, very pleased that Carol Beaumont picked up on this point—I almost got the impression that he did not actually understand the bill. If that is the case, it is little wonder that the Justice and Electoral Committee came to the position that it came to in recommending this bill—either that, or Mr Bridges was trying to seriously misrepresent the position as contained in this bill. Mr Bridges said that the arguments against this bill were reduced to a mantra. He argued that the right to remain silent, the requirement to identify issues in dispute, was not actually under debate. Well, if he had listened to the speech of his own justice Minister, Simon Power, he would have heard Mr Power already raise the white flag—“I surrender; I accept I have made a mistake.”
What this bill highlights probably more than any other bill that has come to this Parliament in the last 3 years is the fundamental importance of the ACT Party’s continuing in this Parliament and continuing to grow and to prosper. It is the ACT Party that has upheld those constitutions. One might ask what the issues in dispute are. Well, what this bill required defendants to do was to identify all of the areas that they would challenge and to tell the prosecution in advance what they would rely on, what their alibi was, and how they intended to defend the case against them. That would have allowed the police to train witnesses and to help coach witnesses to present evidence in a particular way that would make it much harder to bring that defence. That would have fundamentally changed the balance.
Another key issue is in clause 376 of the bill, which I will read verbatim. Clause 376, “Proceedings not to be questioned for want of form”, states currently: “No charging document, … conviction, sentence, … may be dismissed, set aside, or held invalid … unless the court is satisfied that there has been a substantial miscarriage of justice.” Well, right now the law provides that the test be a miscarriage of justice, so most New Zealanders would think that if there had been a conviction or a sentence that represented a miscarriage of justice, they would have got off and would have been entitled to a retrial. That is not the case. The Government intended to raise the bar.
Finally, we have heard about jury trials. I campaigned against smacking offences. I campaigned against home invasion. Setting the jury trial limit to 2 years enables a person charged with those sorts of offences to be charged and tried by a jury of their own peers.
The ACT Party supports the bill, and we are very proud of the role that we have played in having it in the form it is in today. Thank you.
I will not make this a long speech, because I think that my Labour colleagues who have spoken before me have covered all that needs to be covered. Labour has always been in favour of streamlining New Zealand’s criminal justice system, but we have objected, through the parliamentary process, to the erosion of certain of our fundamental rights. The changes we oppose are set out quite strongly in our minority report. It is pleasing that members of the other parties have now reached a similar position to Labour’s, and as a result the Minister of Justice, Simon Power, has agreed to the deletion of, or substantial modification to, the unacceptable parts of the Criminal Procedure (Reform and Modernisation) Bill.
We have heard a lot today about the unacceptable parts of the bill. I, for the first time today, have heard ACT express concerns about those unacceptable parts of the bill. I find it interesting that Mr John Boscawen is trying to take credit for the Minister of Justice’s decision to remove those unacceptable parts of the bill. I think credit is really due to my fellow member of the Justice and Electoral Committee Charles Chauvel, who did a wonderful job of highlighting the inadequacies and the unacceptable parts of the bill.
I will leave it at that. I just say that Labour supports this bill.
A party vote was called for on the question,
That the amendments recommended by the Justice and Electoral Committee by majority be agreed to.
- New Zealand National 57
- New Zealand Labour 42
- ACT New Zealand 5
- Māori Party 4
- Progressive 1
- United Future 1
Question agreed to.
A party vote was called for on the question,
That the Criminal Procedure (Reform and Modernisation) Bill be now read a second time.
- New Zealand National 57
- New Zealand Labour 42
- ACT New Zealand 5
- Māori Party 4
- Progressive 1
- United Future 1
Bill read a second time.