Wednesday, September 28, 2011

Criminal Procedure (Reform & Modernisation) Bill - 2nd Rdg

 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. 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 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 as the bill is 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. It is not only 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 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.

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