Parker David: Courts (Remote Participation) Bill — First Reading 
Parker David: Courts (Remote Participation) Bill — First Reading 
[Volume:661;Page:9691] 
Hon DAVID PARKER (Labour) 
: 
 As has been said by previous speakers on behalf of the Labour Party we will be supporting the Courts (Remote Participation) Bill. I concur with some of the comments that have been made by the two previous speakers. I agree that there are some imperfections in our justice system. I agree with Mr Quinn that it takes far too long on average between arrest and trial in criminal matters. We need to improve processes in that respect. A lot needs to be done to reduce the complexity of trials to ensure that people get a fair trial and to ensure that the trial takes place not too long after the offence partly because people languish in prison if they have not been granted bail at the cost of the State during the period between arrest and trial. That is unfair to them on occasion and a waste of taxpayers’ resources. 
I also agree that civil litigation has become so complex and costly that most litigants now cannot afford to go to the courts to resolve their disputes. Given that one of the reasons we have courts is to provide a mechanism to enable people to resolve their disputes without resorting to non-civil means such as stand-over tactics or violent disagreements that situation means that something is wrong with our system. 
This bill makes some good changes. It states that audiovisual technology can be used on some occasions and it sets out some rules on that use. I will refer to some of those rules. When no evidence is being given in a criminal proceeding the presumption ought to be that the matter can proceed by way of audiovisual links. Those are things such as a bail application or a call-over. An example might be a charge originally presented in court on one day and adjourned to a date a month later and everyone has agreed that at that month-later date the matter will be referred to a subsequent date for a plea of guilty or for a trial. 
Now at that call-over there really is no point in going to the trouble and expense of having all of the parties present. Where there is no substantive evidence being given and no substantive question being tried by the court it is perfectly proper that video technology be used on some occasions and indeed that there should be a presumption in favour of its use. Of course that presumption can be overcome if there are good reasons not to use audiovisual technology in a particular instance. 
In respect of civil matters again the test does not need to be as high as it needs to be in respect of a criminal trial where the substantive charge is being heard. So there is a relatively lighter test in respect of the use of this new technology in civil matters than applies to matters where the substantive criminal charge is being heard such as a defended hearing or a jury trial where someone is charged with a crime. However in respect of the substantive criminal trial it is proper that there is no presumption in favour of use of this technology because there is a lot in what Hone Harawira said: that we ought to give people the opportunity to hear and be heard if they are on trial. 
The definition of to whom this new law applies is wide. It refers to “any participant in a proceeding” and a participant in a proceeding can include a defendant or a party to a trial. I would not like to see a system where we were forcing the defendant into a trial process where he or she or witnesses did not have a right to be there personally. That protection is afforded by this legislation by setting out criteria for when to allow and when not to allow the use of audiovisual links. Those criteria are set out firstly in clause 5; secondly in respect of criminal proceedings additional criteria are set out in clause 6. In criminal proceedings the overall consideration is the potential impact of the use of the technology on the right of the defendant to a fair trial. That consideration is at the heart of decisions on whether this technology can be used in criminal proceedings. 
On one issue I disagree with one of the speeches that was given by an earlier speaker on behalf of National and that was in the contribution that Simon Bridges made. Simon Bridges said that he agreed with the use of this technology but then went on to say that he could see it being extended into more regular use in respect of the substantive trial in a criminal matter. I agreed with him when he said that demeanour does not prove “truth”. Someone can present as a fidgety witness who looks nervous and a lot of people are understandably nervous when they are in court even as witnesses but that fidgetiness or nervousness does not necessarily indicate that the person is lying. Similarly someone might appear at a trial and have a very calm demeanour but that calm demeanour does not prove that he or she is telling the truth. 
I agree with both of those propositions that Simon Bridges stated. Where I disagree with him is in taking it a step further to suggest we can rely more on audiovisual language where one does not have the same access to body language and the nuances of people when they are giving evidence because although demeanour does not prove truth or untruth it is certainly relevant to the assessment of whether there is truth or untruth. Although demeanour will not always show to the judge or jury whether someone is lying or is to be believed on occasions it does. The defendant ought to have the ability to have recourse to those occasions and the judge or jury ought to see those occasions. There are many occasions where a witness is not fidgety or looking nervous in respect of the whole of his or her evidence but when it comes to the crucial part of the evidence that is being contested and where there may be an untruth being told or a gilding of the lily in one way or another the body language changes. 
In respect of that sort of situation it is very important that the witness is there to be seen by everyone: the jury the judge and the defendant. The defendant therefore gets the sense that his or her trial is fair. We need only to think of our own experience in Parliament where we have audiovisual presentations from people at select committees. Although again that is a great facility that saves cost to people on occasions I think one loses the passion and sincerity of a presentation that one sees when people appear in person in front of the select committee. 
Although the Labour Party supports this legislation we emphasise that we do so on the basis of the protections that are found in the legislation which have different presumptions in respect of different sorts of processes so that for a criminal substantive matter where evidence has been called there is no presumption in favour of the use of this technology. On many occasions in a substantive hearing the evidence will be inappropriate to be heard in that way. 
Having said that we cannot ban its use in all criminal substantive matters because there will be occasions when all parties including the defendant agree that it is appropriate that the matter be traversed by way of audiovisual evidence. An example might be where there is some professional evidence being given about some theory of a pathologist on how somebody died or an alternative cause of death being posited and the witness who has that specialist expertise is overseas. 
It could be in everyone’s interest—the Crown because the Crown wants to get to the truth of the matter and the defendant because the defendant wants to prove his or her innocence—that the evidence of that international expert in this possibly narrow field be available to the court. In practice that may be affordable to the defendant only through the use of audiovisual technology and it could be very appropriate that it be allowed. This legislation would allow that to happen by audiovisual link without creating a presumption that audiovisual evidence can be forced upon a defendant where the demeanour or the truth-telling of the witness is one of the matters at issue and where the defendant ought not to be forced to accept such evidence. 
So for those reasons the Labour Party will be supporting this bill’s referral to the select committee. We think it is an appropriate advance. It will not make much difference to the cost-effectiveness of trials but it will make a small difference and it is a step in the right direction. Thank you. 
Bill read a first time.