Third Readings

Hon ANNETTE KING (Minister of Justice) Link to this

I move, That the Crimes Amendment Bill (No 3), the Criminal Disclosure Bill, the District Courts Amendment Bill (No 5), the Juries Amendment Bill, the Summary Proceedings Amendment Bill (No 4), and the Victims' Rights Amendment Bill be now read a third time. This legislation amends the Crimes Act, the Summary Proceedings Act, the District Courts Act, and the Juries Act, and it also creates a new Criminal Disclosure Act. The overall purpose of the amendments is to maximise efficiency and fairness in the criminal justice system. Victims will benefit from a number of reforms in the legislation. The legislation responds to Law Commission recommendations and developments overseas. Many of the areas included in this legislation have not seen fundamental reform for many years. The rules have not kept pace with changes in society, including changes in technology and reforms in other common law countries.

Major areas of reform included in the legislation are changes relating to jury trials, exceptions to the double jeopardy rule, and reforms to preliminary hearings and disclosure. There are also reforms affecting middle-band offences, and I will briefly outline some of the key reforms in each of these areas.

The legislation proposes to introduce 11:1 majority verdicts instead of the current unanimous requirement. There are a number of reasons for this change. It helps to address the problem of rogue jurors who refuse to participate in deliberations and produce a hung jury for reasons outside the merits of the case. Another reason is to prevent a single juror from being pressured by the other 11 to return a verdict that goes against his or her conscience. The outcome will therefore be a more honest result. The change will also make jury tampering by bribery or intimidation more difficult for organised criminals to achieve. As a result, all those involved in jury trials, including jurors, witnesses, and victims will benefit. A large number of amendments have been made to the Juries Act 1981 to improve the administration of jury service and to recognise the consequences that jury service has on the people who fulfil this important role.

In addition to those jury trial amendments, other reforms in the Crimes Act allow judge-alone trials in cases where the trial is likely to be long and complex, and in cases involving juror intimidation. These reforms will ensure fairer trial processes and will reduce the prospect of people serving as jurors for unnecessarily long periods.

The bill also creates two exceptions to the double jeopardy rule, which currently provides that a person can be tried only once for an offence. The first exception is where the accused has committed an administration of justice offence that results in his or her acquittal—a tainted acquittal. Administration of justice offences include offences such as perjury, bribery of a judicial officer, and fabricating evidence. This change will ensure that those who use such tactics cannot benefit from their wrongdoing.

The second exception is where there is new and compelling evidence that was not available at the time of the first trial and indicates that the accused committed the offence of which he or she was acquitted. If such evidence surfaces after trial and acquittal, the person can then be brought to justice. This exception is subject to a number of safeguards, including that it applies only to serious criminal offences such as murder and rape. In addition, the evidence must not have been available at the time of the first trial. The evidence must be reliable, and consent must be sought from either the Solicitor-General or the Court of Appeal to proceed to different stages in a case where compelling new evidence is the issue. The reforms to the double jeopardy rule will benefit victims and society as a whole, ensuring that criminals are brought to justice.

An amendment that was added by the Law and Order Committee permits changes to be made to the middle-band offences by way of Order in Council, rather than the need for the District Courts Act to be amended. This will enable class A drug offences to be put into the middle-band and dealt with by the District Courts rather than by the High Court. This would ease pressure in the High Court arising from the significant volume of methamphetamine cases. However, it should not be assumed that the High Court will send all such cases to the District Courts. I am confident that the High Court will use this power with discretion to ensure that the pressure that exists in the High Court will not simply be transferred to the District Courts. Appropriate protocols will need to be developed to ensure that this process is administered in a manageable way.

The third major area of reform is the replacement of oral preliminary hearings with committal on the basis of formal written statements unless the court orders an oral hearing. These hearings are largely redundant, and they require victims and other witnesses to duplicate their court appearances. This in turn is stressful and unduly demanding. As recent cases demonstrate, this is especially so for victims and family members faced with the daunting prospect of having to recount painful experiences at a trial when they have already been required to do so at a preliminary hearing. The legislation provides a standard pre - jury trial procedure under which the parties present their evidence in the form of written statements, with automatic committal for trial unless either party applies for an oral hearing.

We are all aware that this legislation has had a protracted journey from the introduction of the original Criminal Procedure Bill to the final readings of this legislation. However, the Government’s Supplementary Order Paper, which was developed in consultation with colleagues in the National Party, has paved the way to the successful progression of this legislation. The amendments effected by the Supplementary Order Paper give the parties the right to make oral submissions in support of an application for an oral evidence order. Further, it requires the new committal process in the legislation to be reviewed by the Solicitor-General or a nominated person as soon as practicable after it has been in operation for 2 years.

To complement the removal of preliminary hearings, the legislation creates a new Criminal Disclosures Act, which provides a comprehensive regime of prosecution and pre-trial disclosure in criminal proceedings. This single and easily accessible statute will replace the current arrangement whereby prosecution pre-trial disclosure is regulated by a mixture of case law and statutory rules under the Official Information Act and the Privacy Act.

I thank the Law Commission for its work in this area. I also thank the members of the Law and Order Committee, who considered this legislation, and those who made submissions on this legislation. I particularly thank my colleague and Associate Minister of Justice Rick Barker, who worked very hard to ensure that we had the support for this very important legislation to pass through this House. Finally, I thank the members of this House who are supporting this legislation, because I believe it will enhance the efficient management of criminal proceedings while ensuring maximum fairness to everybody involved. I am pleased to commend this legislation to the House.

Dr RICHARD WORTH (National) Link to this

This legislation, which started life in this House as the Criminal Procedure Bill, is not without controversy. I do not doubt that there will be many within the legal profession and on the edge of the legal profession who will have some concern about its content. But it does have the support of National as it now proceeds as six divided bills. In saying that—that there are six divided bills—one certainly gains an early appreciation that the legislation is far-reaching, for the Criminal Procedure Bill is to be split into the Crimes Amendment Bill (No 3), the Criminal Disclosure Bill, the District Courts Amendment Bill (No 5), the Juries Amendment Bill, the Summary Proceedings Amendment Bill (No 4), and the Victims’ Rights Amendment Bill.

The previous speaker, Annette King, commented that this bill has been delayed in its passage. That is clearly right, because it was introduced and had its first reading in June 2004. If the Government was truly concerned about any particular issue in the bill, then there was no reason why other parts of the bill could not have been advanced, instead of what was the case—that is, that the bill languished for a very substantial time in this House, until it emerged today at the third reading.

Let me just say something about the state of the courts, which is directly relevant to what we are being asked to vote on today—that is, that there are major problems in the courts system. It is truly clogged, and a herculean effort will be required to deal with that particular issue. The median waiting-time for High Court jury trials in Auckland has more than doubled since 2003, to 304 days. That is the time between committal and the start of a hearing in the High Court to determine the guilt or innocence of an accused person. That person has to wait for 304 days. In the context of the interests of justice, that is too long. It is too long for that accused person, too long for the witnesses who will be called to give evidence, and too long in the context of any legal system that must have a substantial degree of integrity. In the same period, the median waiting-time in the Auckland District Court has jumped 17 percent, to 293 days, since 2004. And the number of outstanding High Court jury trials in Auckland has more than quadrupled since 2002, from 47 to 203, while in the District Court they have increased 17 percent to 175 cases. These are not good figures. These are not good statistics. These are simply unacceptable in the context of that well-worn, but nevertheless very true, phrase that justice delayed is justice denied.

I will talk about some of the major changes that are implemented by this legislation. One of those most significant changes—no doubt about it—is in respect of majority verdicts in criminal cases. English common law and the United States Constitution recognise that the right to a jury trial is a fundamental civil liberty or civil right. It may be that many other nations do not recognise that as such, because jury trials have evolved within common law systems rather than civil systems, and it is right to say that jury trials are of far less importance in countries that do not have a common law system. But they are very much a fabric of our system, and in most common law jurisdictions the jury is responsible for finding the facts of the case, while the judge determines the law. These people—we can call them peers of the accused—are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and making decisions in accordance with the rules of law and their jury instructions, and typically, of course, the jury judges only the guilt on a verdict of guilty or not guilty, with the actual penalty being set by the judge.

It is also right to say that in countries where jury trials are common, juries are often seen as a very important check against State power. There are other common assertions about the benefits of trial by jury, in that they provide a way of injecting community norms and values into judicial proceedings, and they legitimise the law by providing opportunities for citizens to validate criminal statutes and their application to specific trials. It is in that context that we are moving away from this very fundamental law principle of unanimity in jury verdicts. One needs only to look around the world to see that that, sadly, has become a circumstance that has been picked up in a number of cases.

We have the present law that in New Zealand all criminal cases must carry with them a unanimous verdict from the jury, but, sadly, the rate of hung juries has continued to rise. According to the latest information it is now at about 10 percent. When we look around the world, we see that a number of jurisdictions now allow majority verdict decisions. In the United Kingdom it is a majority verdict of 10:2. We are proposing 11:1. This means that 11 jurors say guilty and one says not guilty, or perhaps one stands out. In the Northern Territory it is 10:2. In Tasmania it is 10:2. In South Australia it is 10:2. In Victoria it is 11:1. In Oregon it is 10:2. In Hawaii it is 10:2. In Alaska it is 10:2. We have not run with 10:2; we have run with 11:1. That is one of the big changes.

Hon RICK BARKER (Associate Minister of Justice) Link to this

I want to speak on the third readings of the bills that were formerly part of the Criminal Procedure Bill. Firstly, I thank the Law and Order Committee for its excellent work on this legislation, and in doing so I feel compelled to acknowledge, in particular, the work of Martin Gallagher. I also acknowledge the work of the parties across the House on this very important issue, because, as Dr Worth has said, it is a significant and substantial reform in our justice sector.

I will deal firstly with the issue raised directly by Dr Worth, which was about advancing parts of the legislation. There was an implied criticism of the Government’s handling of this issue. Dr Worth said that the area where we could have middle-banded some cases, such as those involving methamphetamine, should have been proceeded with, and therefore should not have been held up, because this reform would have affected court pressures in the High Court. Although that is true, what Dr Worth has not said is that by shifting the work from the High Court to another court, we are simply shifting the work in the system, and there have been no improvements in the efficiency of the system. If we accepted Dr Worth’s contention and just shifted the burden from one area to another, we would not be solving the actual problem. It is a little bit like taking drugs to mask the pain—it does not effect a cure. We want to have a cure, and this legislation is about effecting a cure.

In the second part of Dr Worth’s opening lines he said that the courts were under pressure, and to a degree he is correct. But what he has not told the House about is the very good, detailed presentation given to the Law and Order Committee yesterday, which talked about how we have significantly improved the throughput of cases in our court system. Some courts have improved by 12 percent, some by 15 percent, and one court has had a staggering 24 percent increase in throughput. However, despite this achievement, the number of cases coming before the courts has been higher. Yes, Dr Worth is able to focus on one aspect—on waiting times—but in doing so he does not set out with any degree of clarity the nature of the circumstances in which our courts find themselves. Our courts should be commended for their increases in productivity. Let us imagine that in health we were getting a 24 percent increase in the number of people getting hip operations, or a 15 percent increase in the number of people getting surgical bypasses. There would be substantial cheering about that.

This Government has been able to bring about a remarkable success in our court system. The difficulty for the court system, of course, has been that it has no control over the number of applications, informations, and cases that are laid before it. These have increased at a greater rate than the rate at which the court has been putting cases through. The National Party should celebrate that, because it is a reflection of this Government’s active stance against crime—more police on the streets, more investigations, and more cases being resolved. Under this Government there has been a higher rate of resolution than was ever achieved under a National Government. A National Government never got anywhere near a 40 percent resolution rate on crime. This Government is achieving in excess of a 40 percent resolution rate. In fact, it has a resolution rate of over 45 percent. We have more police investigating crimes and achieving a much higher rate of resolution. Naturally, this is leading to more people being charged and brought before the court.

This Government has responded in a number of ways. Firstly, in Auckland we have reopened the Papakura court. We have built more courts, we have extended courts, and we have refurbished courts. We have put new technology in place, added judges, added staff, and increased training. I am pleased to tell Dr Worth that in Auckland in particular, where the case pressures are greatest, we are seeing the first signs that the rate of disposals is exceeding the rate of new filings. So we will see an improvement on the workload that is coming along. It is a very important achievement.

The application of new courts, and so on, is but one part of it. We have to look at the processes that lead into the court’s work. The Criminal Procedure Bill is one of those pieces of work that does so. Work on the bill was led by the Law Commission, which made some excellent recommendations. I advise the House that more work is to follow. That bill makes a number of improvements, such as the exceptions to the double jeopardy rule. Middle banding is now possible, if it is decided to do that. We have overcome problems with the jury system in terms of majority verdicts. We have increased the range from which people can be drawn for jury service—and so on.

I want to highlight one area where we did not have immediate consensus, and that is the area of depositions hearings. My colleague the Minister of Justice, Annette King, has spoken about this issue, and I emphasise to the House that we have reached broad agreement on the need for reform of the depositions process. I acknowledge that some members have doubts about the merit and benefit of this reform, but I advise them that the Government will examine this issue in great deal. The Supplementary Order Paper agreed to by the Committee of the whole House requires the Solicitor-General to commence a review 2 years after the oral depositions process is changed, and to report within 6 months on what those changes mean. We can speculate either way on whether this will be a good thing or a bad thing, but the Law Commission recommended the change on the basis of thorough consideration and in the light of overseas experience.

Experience shows that if there is a clear, strong regime for disclosure, the defence will have all the information it needs prior to the case going to trial, and the defendant can then decide whether to plead guilty. Some members believe that defendants are likely to plead guilty only if they are given the information orally, and that somehow people are unable to comprehend the information in writing and would therefore come to a different decision. I do not agree with that view. I think that people would make the same decision, regardless of how the information is conveyed to them.

Prior to the trial there will be full disclosure to the defence, and the normal regimes will apply. This change to the legislation means that victims will have to turn up to court only once, and that defendants will have exercised their right to a fair trial. Contrary to what was asserted previously, defendants will be presumed to be innocent until proven guilty. If there is a failure in the system, then defendants’ rights are preserved, because after that they will have the right to appeal. They will also have the right to appeal on other levels. So we have very strong appeal rights in New Zealand.

In my view the changes to this legislation will speed up the pre-trial process. Thousands of hours of court time are taken up in hearing oral depositions. Those thousands of hours of court time will become available for trial time, and trials will therefore be able to move through the system more quickly. This will bring about a significant improvement in our court system, and it will be beneficial to everybody. It will be beneficial to victims because they will appear in court only once, and inevitably the trial will occur earlier. It will be beneficial to defendants because their trials will be concluded earlier, and this legislation will guarantee them full disclosure of information prior to the trial.

In conclusion, I think the House has worked very cooperatively on this legislation. It is a major reform, it is overdue, and it will be effective in ensuring that the New Zealand justice system is as modern as we can make it. Although this reform will bring great improvements, further improvements will need to be made in the future. I look forward to seeing that legislation brought before the House, which will continue to be led by a very good Labour Government.

CHRISTOPHER FINLAYSON (National) Link to this

I too am pleased that we have reached the third reading stage of these various bills, because I have found from speaking to various members of the legal profession that for some time they have been very concerned about the slow state of litigation, particularly in the High Court in Auckland, and that is primarily because of the number of methamphetamine trials. So the fact that we have reached a happy conclusion is a good thing. I am delighted that the various parties in this House worked together to reach a resolution, and I endorse what the Minister of Justice said: one of the safeguards will be a review of the deposition changes in a couple of years’ time. That is all good. It is an illustration of what happens when we have cooperation across the House.

It is interesting that just this morning, and Mr Tanczos will recall this, the Minister of Justice came before the Justice and Electoral Committee to talk about the estimates. She gave us quite a touching homily on the desirability of bipartisanship, or multi-partisanship, in certain justice areas. I agree that that is a very desirable aim. This matter was able to be progressed because the Government, after some months, condescended to speak to the National Party—and I acknowledge the activity of the Minister for Courts, Mr Barker, in that regard. All I say is it is a shame the Government did not bother to talk to us in a constructive way prior to a couple of weeks ago.

I contrast that touching plea for multi-partisanship with the approach of this Government to other legislation—for example, the odious Electoral Finance Act. I refer, in passing, to what parliamentary counsel said during the select committee process on that bill. He said that if we want legislation in that kind of area that is enduring, we have to have a multiparty accord. He said that that was what had happened in 1993, when the Hon David Caygill and the Hon Murray McCully worked together on legislation. For his efforts, he was essentially told by the member for Wellington Central to go and see a taxidermist. She simply said that it is our kaupapa and he should stay out of it. Now, of course, the Labour members are reaping the reward for their spiteful partisanship.

I come back to the legislation. These bills address a number of major issues, and the first one I want to touch on is the reform of juries. As Dr Worth said in his speech, a number of major changes are introduced in relation to majority verdicts. I am not going to repeat the comments he made, because I thought he summarised very well indeed the proposed changes set out in sections 29C and 29D in clause 82 of the original Criminal Procedure Bill.

There is one change that I have to say I am a little disappointed in, and I want to elaborate on it at length. Clause 70 of the Criminal Procedure Bill set out some amendments to section 8 of the Juries Act. Section 8 says that certain persons may not serve on any jury in any court on any occasion—members of the Executive Council, members of the House of Representatives, judges, and various other people. The only change made to the question of who can serve on a jury is the addition of the Governor-General to the list of those who may not. But I think the time has come for a realistic review of jury service. I happen to agree with the attitude to jury service that is expressed in the United States, where juries are revered: a jury is one of the hallmarks of a well-functioning democracy. As one person has said, a citizen cannot be imprisoned or have his or her liberty taken away simply by the act of an official, such as a judge, and that is why juries are put on such a pedestal. I think perhaps the Americans go too far in putting juries on a pedestal, but juries do play a major role in the criminal justice system and, to a lesser extent, in the civil justice system.

I am a little disappointed that we did not have a good look at section 8 of the Juries Act 1981, bearing in mind the Auld review of the criminal courts of England and Wales, which occurred in 2001. Sir Robin Auld came up with a number of proposals for the removal of all categories of ineligibility based on occupation. He had a reservation about judges but decided that judges should not, ipso facto, be excused from sitting on juries. That is certainly the case in the United States, where even someone as eminent as Justice Breyer of the United States Supreme Court had to take part in jury service. One New York columnist described it as a foolish experiment in injudicious pseudo-egalitarianism. In England the proposed changes have come through, and judges do indeed serve on juries. A great effort has been made to clamp down on the so-called middle class opt-out from jury service. Judges, lawyers, the police, and others connected with the justice system have just as much of a duty to the State to take part in a jury as anyone else.

I believe that in this country, too, large numbers of the middle class opt out and get away with opting out. The absence of professionals from the bench has fuelled an unfair caricature of juries as being over-peopled with the feckless, the grudge-bearing, and the unemployed, as one anti-jury commentator put it. I think everyone has a duty to serve on a jury, and there should be very few exceptions. I do not believe that judges should be excused from service, and I do not believe that lawyers should be excused, either. But, my having said that, some major changes are introduced by the Juries Amendment Bill, and I endorse those kinds of changes, because they are very important indeed.

The second set of changes that I want to touch on, and several members have already referred to them, are the changes to the depositions procedure. I can understand why my very good colleague the member for Whanganui has been concerned about them and has taken part in some of the cross-party discussions. I believe that the safeguard that the Government has agreed to of reviewing Part 5 of the Summary Proceedings Amendment Bill (No 4) after a couple of years will satisfy me. I tend these days to regard depositions in a criminal case in much the same way as I regard interrogatories in a civil case. In one out of 10 cases they may serve a useful purpose but generally I do not think they do. They are very expensive. For example—and this is only one take on expense—five or six lawyers in a complex criminal case undertaking depositions in the District Court over a period of 5 or 6 days can be very expensive indeed.

There is an important rearrangement of the jurisdiction of the District Court. I endorse what the Minister said. Prima facie, these cases can now be heard in the District Court, but one hopes that the High Court and the District Court will work together to ensure that all the burden is not put on the District Court. Hopefully, we can get some of these methamphetamine trials, which go on and on, out of the High Court in Auckland, so that some of the civil litigation can be given priority.

Next I will refer to the Crimes Amendment Bill (No 3), which deals with the important issue of the retrial of previously acquitted persons. It makes sense given the march of technology. The old rule used to be that people could not be retried, but in the circumstances set out in the bill I think that what is proposed is sensible.

Finally, and the Minister for Courts referred to this, the Criminal Disclosure Bill is the mirror image of the tightening up of depositions, and will greatly facilitate the disclosure of information on the part of the prosecution to the defendant, and, in certain cases, disclosure obligations on the defendant to the prosecution.

In conclusion, I am very pleased that this legislation will go through today. It will go some way towards alleviating the pressures in the criminal justice system. For myself, I think a lot more has to be done; I would even go so far as to say there should be a fundamental rethink of whether the purely adversarial system of criminal trials is the right way to proceed, or whether we should be moving towards some sort of inquisitorial system. That is a subject worth discussing. I certainly hope that before too long we will have some reforms to the civil justice area. I know that the Rules Committee of the High Court has been working on rules to reform District Court procedure and High Court procedure, and I certainly hope we can have those matters resolved before Parliament rises for the election. I am very concerned about the fact that justice is being denied to people, or if they have access to justice, it is too expensive.

DAIL JONES (NZ First) Link to this

New Zealand First will be supporting the third reading of this legislation, as I indicated in the Committee stage. During the Committee stage I indicated my disappointment that on my return to Parliament in February this year, I discovered that the Criminal Procedure Bill was still on the Order Paper.

NANDOR TANCZOS (Green) Link to this

It is a miracle! I thought that the Criminal Procedure Bill had expired, I thought that it was dead and gone, but like Lazarus it has returned, thanks to the intervention of Simon Power. It has not been raised from the dead so much as turned into the undead. Its stinking, ambulant corpse will now haunt the statute book and the courtrooms of the land for years to come. It is not so much voodoo economics as zombie legislation. I imagine that my good friend Chester Borrows is feeling particularly betrayed that after his driving a stake through the heart of this cadaver, it walks again.

CHESTER BORROWS (National—Whanganui) Link to this

It is an irony of life in Parliament that it is true that some members of Parliament take incredibly lightly the privilege of making a law. It was from the standpoint of taking this privilege seriously that National proposed, under my name, the Supplementary Order Paper that put forward the withdrawal of Part 5 of the original bill. Part 5 removed the right for a defendant to have oral depositions. So I want to address my comments in respect of depositions and disclosure rules.

Whenever we talk about a defendant’s rights there are two reactions. There is either apathy, from the majority, or apoplexy, from those who would prefer a regime similar to those under Mugabe and Bainimarama. The measure of a civilisation is how it treats its most vulnerable, and in this country we treat the innocent vulnerable—the victim—pretty appallingly. But we treat the guilty vulnerable—offenders—much worse. I ask those who would pass this legislation with no consideration or reflection to think on this, and to think on just what we are doing here today.

I came to Parliament to reflect and represent the electorate of Whanganui, and that is my chief role, but I, like every other member of this House, bring with me certain qualities, experiences, and characteristics that define me. There are questions on the defining issues, and those issues are on a continuum of issues that go to who we are as individuals. Although they may be ethereal to some, they are truly salient to the true believer, and the continuum runs from the strongly held belief to the absolute bottom line. It is not a good political move to declare publicly one’s absolute bottom lines, but what should be perfectly plain is the moral imperative to live up to the expectation of those who put us here, given who we are. There should be no surprises.

It is interesting to note, then, that the person most surprised at my voting for Part 5 is me. My experience, prior knowledge, and skills mean that among those I came to Parliament to represent are victims—innocent victims and guilty victims. Those who appear before our courts are frequently the authors of their own misfortune, or of calculated, cold, and callous offending. Often, too, they are the result of negligent, manipulative, indifferent, or absent parents and caregivers. Does anyone believe, for instance, that Bailey Kurariki is not both an offender and a victim? He should carry the can for his offending and the bad decisions that he freely made, but we all want to believe that we live in a country with equality before the law, and with equity of arms in respect of access to justice. Our rights in this country are here to protect us all—the most innocent and the most despicable, the deserving and the undeserving—because that principle of justice for all is what separates us from Zimbabwe and Fiji, or Burma and China. The simple clarifying question is this: would one rather be an accused person in Suva, Harare, or Auckland?

My having said that, it is important to note that what we are doing in respect of the removal of depositions is altering legislation that for generations has protected in a fair way those who have been accused before the courts. It has been a hallmark of our justice system, and it is encapsulated in the phrase that it is better that 10 guilty people go free than one innocent person is convicted.

In looking at the two elements that I want to speak to—Part 2 of the original bill, around criminal disclosure, and Part 5, around depositions—I want to make a number of points. I am voting for this legislation now because we have managed to achieve some concessions from the Government. Those concessions are, firstly—and we achieved this one a long time ago—that one of the bases on which a judge may award an oral evidence order is that he believes that it is in the interests of justice. Another concession is that in making written submissions in respect of seeking an oral evidence order, an applicant can make oral argument to it. Previously that provision was not there and it was not a feature of the Law Commission’s report to the Ministry of Justice in preparing this legislation. The third reason is that the Government has agreed to a 2-year review of how depositions work.

The main reason for opposing depositions being in the form that they are in this legislation, from my point of view, was that disclosure does not work. Also, the removal of depositions was supposed to speed up the trial process, but there are other ways of addressing delay that have nothing to do with depositions. But the validity of depositions in the form that they are in this legislation will hinge critically on disclosure. The main reason why depositions are lagging and there are delays is around disclosure by the police. We have to remember, too, that currently common law and precedent force the police to make disclosure, yet, in spite of all that, disclosure is not made. The most recent obvious case of that is the Kāhui trial, where in front of the jury it was shown that police had not disclosed, and—what do you know—before too long the jury found that it could not convict. So how are the courts, in seeking to review how well the system works, able to measure whether disclosure has been made, when they do not know what it is? At the moment, the disclosure is made on the papers, but there is no way of testing it by an oral discussion or cross-examination before the court. How does one know what one does not know? That will be the challenge for anyone seeking a review—the Solicitor-General in particular.

I would suggest to the department for courts within the Ministry of Justice that what it needs to do is to institute a policy where, where practicable, the judge who will hear the trial—the trial judge—also hears the pre-depositions conference. At the moment, pre-depositions conferences are not heard by a judge; they are generally heard by a deputy registrar, but where they are heard by a judge, a much more strident view is taken of lack of disclosure. If we want to hold to account the parties to an action, we need to ensure that a judge hears the pre-depositions conference, because he or she then has ownership of the matter as it travels through the court system. Through the depositions process the judges know the case, they know the parties, and they know the glitches and the hitches that will come along and work against justice unless the provisions in relation to disclosure are well kept.

The next thing that needs to be done is that the Ministry of Justice needs to ensure that it is keeping tabs on the exact number of depositions cases that are made; the applications for oral evidence that are made; the reasons why judges are not awarding them, and those notes must be full; the number of cases, for instance, where there are changes of plea before depositions and before the trial; the number of section 344A and section 347 applications that are made; how long those applications take to be heard; and what those issues are as they are raised.

I raise this matter now for a particular point: the department for courts would have to be the worst department to seek information from. Every time one seeks information from the department, one is told that it does not collate the information one is seeking, that it cannot give it, or that it would take too long to find out. It is absolutely hopeless. Time and time again one needs to go before the Ombudsman to get the information. It is the department for courts’ lack of ability that we are most concerned about.

The other point that needs to be made here—and I make it again so that it is recorded—is that there must be acceptance by the police that this legislation requires them to make full disclosure. They cannot simply adhere to the disclosure rules as they are to date; the police cannot address the disclosure law under this legislation so slovenly. It is for the courts to then determine what the punitive aspect for the police not disclosing in a timely manner will be. I predict that the Crown will lose matters before the courts at trials, trials will be longer, and pre-trial applications will be longer and more expensive because they will be heard before a judge. It must be reinforced that there must be a cost for not adhering to the disclosure rules under this legislation.

I look forward to a review in 2 years. I look forward to it being open and honest. Mostly, I look forward to the department for courts supplying the information that will allow the Solicitor-General to make a proper decision in this matter.

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

Tēnā koe, Mr Assistant Speaker. The Māori Party is the newest political party in this Chamber. We are always happy to share our experience of the innovations and initiatives that we have drawn on in establishing ourselves as the proud and independent Māori voice in Parliament.

One development we are very proud of is the effectiveness of tangata whenua processes in achieving consensus, which is the outcome of kotahitanga. Kotahitanga is the principle of unity, and of purpose and direction. It is demonstrated in an environment where all are encouraged to make a contribution and to have their say, and then together a consensus is reached. All decisions of our electorate council, of our national council, and of our annual hui are made by consensus. Candidates are selected by consensus. Consensus is our mode of operating.

Consensus also helps to build whakawhanaungatanga. It honours whānau decision-making processes, where collective action is strengthened and progress is made towards attracting commitment. This is not an easy option, by any means. People do not necessarily agree with the outcome, but they may agree to support it, being satisfied that it was the best decision that the group could make at that time.

The process of building consensus requires active participation. It demands respect, it stimulates debate, and it takes time. The path of true democracy never runs smoothly, but it ends with a sound basis for moving forward into the future. Consensus means that all shades of the argument are heard, not just the majority view, the winner, or the minority view, the loser. The creation of a majority implies the creation of a minority. The process of consensus has a precedent handed down by our tīpuna. Decisions were never made by a majority of rangatira or ariki as leaders. Hui were held amongst whānau so that collective responsibility was achieved, with the group’s interests riding over those of the individual.

So we in the Māori Party came to the Criminal Procedure Bill knowing, understanding, and appreciating a concept that could have been crucial in promoting the rights, responsibilities, and obligations of offenders and victims in the justice process. But instead we were confronted with a proposal to have trials by judges instead of juries. Rather than encouraging community involvement and ownership of the justice system, this legislation puts in place the means by which the judge can dispense with a jury. The right to be heard by a jury is one of the cornerstones of our current legal system. It is not perfect by any means, but having a public trial in front of a jury of one’s peers has a public benefit as well as a private benefit.

The other related proposal is the introduction of a majority decision over a unanimous verdict. Such a proposal flies in the face of consensus and compromises on the principles of social justice, by removing the need for listening and for dialogue. It is greatly disappointing to see the justice sector resort to settling for mediocrity rather than taking on the challenge of the consensus process. The majority verdict is another way of saying that we will just accept the fact that consensus could not be achieved. It is another example of the make-do mentality rather than striving to work through the differences and arrive at a verdict that everyone can sit with.

Section 17 of the Juries Act states that every jury shall comprise 12 jurors, but it says nothing about the explicit numerical balance required to support a verdict. With this legislation we are now being presented with a possibility of 11:1 majority verdicts, which is the system used in some Australian and United Kingdom jurisdictions. There is no doubt that a unanimous verdict requires far more certainty than a majority verdict, but there is plenty of doubt as to the rationale for making such a fundamental change to the legal system. Is it to do with the fact that roughly 8.2 percent of jury trials end in a hung trial? Is it to do with dealing to the so-called rogue juror—the jury member who, no matter how persuasive the evidence, cannot entertain the thought of changing his or her mind? Is it an incentive to prevent corruption or jury tampering? Is it to do with the fact that we believe in juries only when the verdict they arrive at is the one we agree with—because someone has to be found guilty? Or is it because our desire to find someone guilty has overwhelmed an accused person’s right to the benefit of the doubt?

The really distressing thing about the context of this omnibus legislation is that some very worthwhile ideas, which we in the Māori Party could support, are promoted within the greater framework of the legislation, with the hope that its less favourable aspects will not be revealed. All of the publicity around the legislation has focused on the initiative to allow depositions to occur based on written evidence rather than a preliminary oral hearing. The effect of this development is that victims of crime will not be forced to go through the oral depositions process as well as submitting written evidence. For many victims who appear before the court, the impact of giving evidence twice adds a whole new level of trauma to the reporting of violence and criminal offending.

We in the Māori Party absolutely support such a proposal and believe it will have many positive effects. Written depositions would not only introduce a layer of compassion and fairness for victims of crime but also enhance administrative efficiency and make for a more effective use of policy and judicial resources. The Māori Party is happy to support any moves to prevent the persecution of victims on the stand, which would, in effect, make them feel as through they were being brutalised all over again—this time by the legal system itself. So we support Supplementary Order Paper 206, which paves the way for an oral submission to be heard before the judge or any other party.

But we are cognisant also of the advice of Geoff Vause, a Wellington advocate for Victim Support. Geoff suggests that the criminal justice system itself is at a point of collapse, and he has found that the adversarial system is being bogged down in process. Vause puts forward the case that adversarial justice leaves judges with a narrow range of sentencing options, which leads to a filling up of even more jails. His parting shot is: “The community is demanding to see justice done with transparency, consistency and reliability.” That is not a lot to ask, one would think. Perhaps we could also add the following phrase to that sentence: “in pursuit of kotahitanga, collective responsibility, and ownership.”

We are disappointed that the legislation has lowered the standards in terms of settling for majority verdicts and enabling trials by judge rather than jury. Even though there is overwhelming support for the legislation, we will not be supporting it. Thank you.