Fairbrother Russell: Criminal Procedure Bill — In Committee 
Fairbrother Russell: Criminal Procedure Bill — In Committee 
[Volume:638;Page:8242] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I rise to speak in support of the Criminal Procedure Bill and I am appalled at the tripe that has been trotted out by the previous speaker Kate Wilkinson—a member who has in fact had the privilege of being admitted to the Bar. 
The double jeopardy rule is an age-old rule that was created prior even to the discovery of fingerprint evidence. The age-old double jeopardy rule has survived the creation of fingerprint evidence photographic evidence DNA evidence and  
Simpson v Attorney-General 
 which led to the rules of disclosure we now have in New Zealand. Mike Bungay QC said at the time of the Court of Appeal decision which entitled the defence to access the police file that this was the first step towards requiring defence disclosure. Mike Bungay QC was quite right on that. 
I remember the day when the defence first got access to police files. In fact I was conducting a murder trial in Gisborne at the time and the trial was adjourned while we got access to the policeman’s notebook. We found therein that he had made an offer to my client that if my client was to make certain statements he would be given certain benefits. That had not been disclosed to the court. Upon that being disclosed my client was acquitted on the charge of murder and was allowed to go on his merry way home where he has lived safely ever since—as has the community around him. 
The point I am making is simply that the rules have changed and changed rapidly since the double jeopardy rule was created. The double jeopardy rule is a reflection of the English development of the common criminal law whereby the State was reflected in the landowning gentry and the people commonly charged with criminal offences were the servants or effectively the slaves of that landowning gentry. So a number of protections were brought into our criminal law that balanced that imbalance of power. Since those days we have had a great levelling of the playing field and we are moving away from the game of justice to the pursuit of truth and anybody who can stand in this Chamber and say that the pursuit of truth is not a worthy ideal in a courtroom is someone who should reassess his or her values and the content of what he or she is saying. 
No longer should we have our criminal law inhibited by rules that no one can justify because they have long passed their relevance. No longer should we have our juries sitting and hearing evidence that is artificially distorted because some historical rule requires some evidence to be withheld from them. This House just a few months ago moved away from that by introducing the new Evidence Act which enables the court to offer effectively what is the best evidence. That was a move forward in the right direction and was heralded by every speaker in this House. Every speaker in this House thought it was time the new Evidence Act came into force. Of course the corollary of that is the Criminal Procedure Bill. Life in the courtroom in 2007 is very different from life in the courtroom in 1987 more different from life in the courtroom in 1957 and fundamentally different from life in the courtroom in 1907. Today we have a facility where the defence have access to all the material—except that of opinion—that has been amassed by the police and have a chance to peruse it and advance against the high standard of proof the prospect of a reasonable doubt based on the same material that the police bring before the court. 
This is a new playing field. It is a playing field that redefines our criminal law. Such a playing field requires the re-examination of some old bastions that have slowly become shibboleths and otiose in the present day. The double jeopardy rule is one of those rules that no layperson can understand. If one explains to one’s neighbour what goes on in a trial—that jurors hear some horrific evidence apply their earnest efforts to it and a verdict results—the neighbour says it is just a bit of a game because there are rules that protect justice and the truth from coming out. It is a totally disillusioning process and it is no wonder we have TV shows newspaper articles and books published that all cast doubt on verdicts in major trials in this country. The writers of those TV shows newspapers and books know they are on good ground. They know they are talking about a game of justice rather than the pursuit of truth. 
The double jeopardy rule is under attack by the Criminal Procedure Bill—and in a very timid way I have to say and perhaps a regrettably timid way but progress is always slow—but that merely recognises the criminal law in 2007. The double jeopardy rule is a rule that the layperson will not understand. That should be our measure in this Committee when we consider what is right in criminal law. What will the layperson understand when we erode the double jeopardy rule? Will he or she understand that we are continuing with this tripe that it is better that 10 guilty people go free than one innocent person be convicted? That is a phrase I have never understood. It justifies nothing; it is a mere excuse and an apology for the game of justice. It proves absolutely nothing. 
Every trial is self-contained and every trial must be a pursuit of the truth. If a person has been wrongfully acquitted and if correct evidence emerges that shows it was a wrongful acquittal then there is no common-sense or legal reason why that person should not be retried. The days have long gone when trials were conducted on opinionated evidence when Alfred Hanlon of Dunedin could rail forth with his Marshall Hall type of address that was high on rhetoric high on emotion and low on fact persuading illiterate jurors that the way to go was to protect the innocent client because the police had no substantial evidence. Courts these days become venues for the examination of scientific inquiry and evidence where the defence give a careful measured response. There is no fear that people who are wrongfully acquitted will be oppressed by the State because to bring a new charge based on fresh evidence or based on the tainted evidence rule requires very careful steady steps that require the approval of a court before the matter can proceed. 
We have a precedent for that. We have a precedent in corruption charges under our Crimes Act which requires the High Court to approve the laying of charges. No one carps at that; no one says it is an infringement on anybody’s liberty. I simply say to those who carp on with the old-fashioned unthinking quotes that were created two centuries ago that this is the time when we should forge forward with a criminal law that reflects New Zealand. 
That takes me to the second issue which is the question of depositions. I am not sure whether that is in the part I am talking about now or in a new part. 
Simon Power 
: No we’re not. 
RUSSELL FAIRBROTHER 
: We are not dealing with that. Well I will save my valuable words on it for the next part. 
I simply conclude on the argument that the double jeopardy rule has some mystical magical quality. We got rid of witchcraft as a common practice. Witchcraft now lives in the realm of the cosmic and irrelevant. So too will the double jeopardy rule. The sooner it goes the sooner we will have the pursuit of truth in our courtroom and we will abolish this expensive time-consuming stress-creating game of justice.