Parker David: Courts (Remote Participation) Bill — Second Reading 
Text is incorporated into the Bound Volume 
Parker David: Courts (Remote Participation) Bill — Second Reading 
[Sitting date: 29 June 2010. Volume:664;Page:12268. Text is incorporated into the Bound Volume.] 
Hon DAVID PARKER (Labour) 
: 
 I concur with the Minister of Justice on the work that was done by the Justice and Electoral Committee under the good chairmanship of Chester Borrows who I am happy to attest is a very effective chairman. 
I will say why the Labour Party with a somewhat heavy heart will vote against this Courts (Remote Participation) Bill because 99 percent of what this bill will do in practice is good. For 99 percent of the time when the powers in this bill are exercised to force a remand hearing or a bail hearing to be heard without the presence of the accused no injustice will be caused. But there is no need to take away the right of an accused to attend his or her trial; there is no need for that. It is a fundamental right of mine if I am accused of a crime or of anyone in this Chamber or any other person who is accused of a crime to attend the trial at which I am or they are being accused of that crime. It seems to me such a fundamental right that I cannot believe we are so lightly brushing aside that right and saying it is now a matter of discretion for a judge as to whether an accused has the right to be present at the trial where he or she is being accused of a crime—accused; not necessarily guilty but accused. 
I have faith in our judicial officers. We have a pretty benign political climate at the moment in terms of standing up for people’s human rights. But it may not always be that way and we will have the occasional judge who has a rush of blood to the head and thinks that a person might be a terrible evil person who ought to be put away. Maybe there will occasionally be a former prosecutor who aligns himself or herself a little too much with the prosecution. That happens. It does happen on occasions. It does not happen a lot but it does happen. In this bill we are for the first time in New Zealand’s history taking away the accused’s absolute right to be present for his or her trial. 
Why is that important? Well the sense of fairness the sense of justice—or injustice if one does not have the right to attend one’s trial—will be ever held by the person who cannot attend his or her trial when he or she wants to. For ever that person will wonder what went down that he or she did not see. Was the judge asleep? Did members of the jury fall asleep? Were faces being made at that person’s expense when evidence was being called in his or her defence? Were inappropriate pictures being shared amongst members of the jury that the accused did not know about and therefore had a right to challenge? Those are just a few of the examples that I can think of as I stand here speaking. The accused will not necessarily know that that is happening. Even though the accused might have a video link into the prison where he or she is sitting in some little cell—assuming for the moment that we trust completely the Department of Corrections officers never to frustrate that process which is a pretty big ask I would think; at times I could foresee that process being abused at the prisoner end—and even if we assume that that end of the process is perfect there is only one camera in the court and that camera is looking only at the witness or at the lawyer. It will not be focused on the jury it will not be focused on the other lawyers and it will not be focused on someone who might be at the back of the court holding up some sort of protest sign. 
This is outrageous legislation. Tonight we are taking away the right of an accused to be present at his or her trial. I say to the Minister that it is not the international norm. We were spun that by the officials from the department for a start and when we dug into it we found that it was very rare. There is the occasional exception starting to appear in some overseas jurisdictions. Most of them have not done it and those that have done it were wrong to do it. There is no mischief here to be cured. We had no evidence at the select committee that there was a problem that needed to be fixed. We did not have one instance pointed out to us that it was wrong that the accused had the right to appear at his or her own trial; there was not one instance. The Minister will take away my right and the right of every other New Zealander to protect ourselves against the actions of the State by appearing in our own defence. It is now a matter of discretion for the judge. That is wrong. 
What did others say? The New Zealand Law Society and the Human Rights Commission both submitted strongly and both said it was wrong. Given that there is no evidence of any malpractice or something going wrong here that needs to be fixed I ask why the Government would override our existing civil liberties in the face of severe criticisms from both the Human Rights Commission and the New Zealand Law Society ignore those concerns and take away the unconditional right of the accused to be at his or her own trial. 
If an accused acts up when he or she is at the trial and disrupts the proceedings the judge already has rights of contempt to control the way in which the accused handles himself or herself in court. If that person is in contempt of court he or she can be sent down to the cells. I have never seen that happen but I am sure it happens occasionally. Judges have the right to do that. If something goes wrong in their court they already have the ability to control it. But in my opinion there is no justification for taking away the right of the accused to be present at his or her trial. Sure in the 99 out of 100 cases where this will be used in a bail hearing or an adjournment because a witness is not available so the trial cannot proceed or because the parties are not ready then that is fine. I can accept that on those call-overs on those non-substantive trial dates there should be the ability to override the will of the accused. It should be very slow for the judicial officer to exercise that discretion where the accused is opposed to it but that discretion ought to exist. I agree with that. But for the substantive trial where a person may be accused of murder where his or her liberty is at stake where his or her whole life if we think about it is at stake as a consequence of a possible conviction for the person not to have the unconditional right to attend his or her own trial is just wrong. 
What saddens and perplexes me is that I do not understand the problem that is meant to be addressed by this legislation because we were not given any instances at the select committee to show why this was necessary. I think that this is just bad policy that has arisen in the start by accident. I think the departmental officials thought that it was a good thing that we use technology to reduce court costs to speed the costs of court procedures and to speed up trials which are both good objectives because we should not have long periods between people being charged and their eventual trial and we should not make these processes any more complex or expensive than they need to be. It was a good ambition. But the Government’s thinking was too woolly. It did not distinguish between call-overs adjournments bail hearings and the trial where someone is being accused of something for which he or she could be convicted and lose his or her liberty. 
If the Crown will be taking away someone’s liberty then the person whose liberty will be taken away should be able to stand up at his or her trial and participate in every aspect of it. The accused should see everything that goes on. If members in this House do not think that sometimes inappropriate things happen in court well I am sad to say that they are wrong. Those things do not often happen but they sometimes do. Whether it is witnesses behaving inappropriately jurors behaving inappropriately or even occasionally judges behaving inappropriately if I were the accused I would feel less able to protect my interests if I did not have the right to be there. If I was not there to be able to see those things when they go wrong and to protect my interests I would feel an injustice had been committed and that I was not properly able to protect myself against the power of the State. The State has all the power and the resources here. It has the police it has the prosecution service it employs the judges and it has all the money. We need to protect the civil liberty of the accused to be present at his or her own trial.