Wilkinson Kate: Criminal Procedure Bill — Second Reading 
Wilkinson Kate: Criminal Procedure Bill — Second Reading 
[Volume:631;Page:2879] 
KATE WILKINSON (National) 
: 
 In rising to support this bill passing to the Committee stage I have to say that National has some serious reservations in relation to some parts of it. It is interesting when reading the submissions on the bill that the New Zealand Law Society itself opposes the major aspects of the bill stating: “The Bill in its current form significantly undermines certain fundamental principles of the criminal law. There is no sufficient basis in the Society’s view for these radical changes. There is little or no empirical evidence that the perceived problems the Bill purports to address actually exist.” It seems so often that there may be a mischief out there so a bill is created to address that mischief but often that does not happen. Now we have a bill in which some of the mischief is unclear. 
I too want to concentrate on the rule relating to double jeopardy as many previous speakers have done. I share concerns that have already been expressed in this House. This rule which is so deeply ingrained and indeed enshrined in our judicial system is simply that a person should not be tried for the same crime more than once. That is on the basis that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence thereby subjecting him or her to embarrassment expense and ordeal and compelling the person to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he or she may be found guilty. This rule against double jeopardy is also contained as has been mentioned in the New Zealand Bill of Rights Act which provides that no one who has been finally acquitted of convicted of or pardoned for an offence shall be tried or punished for it again. 
So what was the mischief? Why did we even need to consider a change to this well-established principle of double jeopardy? It seems that the reason for this was as Mr Mark has suggested a Mr Moore who was a gang member charged with murder. He was acquitted of murder but was later tried for persuading a witness to give false evidence for him at the initial murder trial that led to that acquittal. Because of the rule against double jeopardy Mr Moore could not be retried for murder although he was sentenced for attempting to pervert the course of justice. The question to be asked therefore is whether this solitary single case is sufficient to justify interference with the law against double jeopardy or whether the matter could have been simply remedied by increasing the penalties for perverting the course of justice. A law change made on the basis of one case makes for bad law. 
So under the tainted acquittal provisions of this bill which have been mentioned a person can be retried for a specified offence if the High Court is satisfied that it is more likely than not that the commission of the administration of justice offence was a significant contributing factor in the person’s acquittal and no appeal or application in relation to the administration of justice offence is pending and the retrial is in the interests of justice. But what does “more likely than not” actually mean? Is it the balance of probabilities or is it so dangerously wide as suggested by one submitter and elusive that it could offer no clear standard to follow? 
It could be argued—and indeed has been argued—that these proposed changes to the double jeopardy rule amount to an overreaction to the Moore case and that the appropriate way of dealing with the injustice in that sort of case is perhaps by increasing the penalty for perverting the course of justice to one whereby the punishment is equivalent to that of the avoided criminal conviction. It is also interesting to note that the United Kingdom has legislated for a tainted acquittal exception with the first double jeopardy case being considered only in November last year. So that is one case in one year. 
If there are to be exceptions to the double jeopardy rule—and the tainted acquittal rule is one—we remove the rule for that case and we have the new evidence rule then where will the other exceptions creep in? Where do we stop and will we end up with a situation where all verdicts are open to relitigation? This new evidence rule provides that a person may be retried if there is new and compelling evidence to implicate the acquitted person in the commission of the specified serious offence and a further trial is in the interests of justice. It is colloquially known as the DNA rule. 
I admit there are some safeguards provided in the bill but they are maybe not as stringent as the member Martin Gallagher suggests. There are some safeguards such as the exception being available for only serious offences where the maximum penalty is over 14 years' imprisonment. But as one submitter wrote these safeguards do not alleviate the inherent risks in such an exception being introduced—namely the potential minefield involved in deciding exactly what evidence could be regarded as new and compelling and the difficulties in coming to a consistent approach. 
It is interesting to note that the New Zealand Law Society opposed allowing retrial on the basis of new and compelling evidence noting there was no principled basis for allowing such retrials. The Attorney-General also opposed it. The Law Commission also opposed it. National supports as stated in its minority view the proposal of the Law Society and others that the penalties for perverting the course of justice be expanded. We think that is a more appropriate measure that would preserve the vital principle of double jeopardy but also recognise the magnitude and consequence of the primary offence. 
Judith Ablett-Kerr QC in her submission—and I think this is worth repeating—stated: “The New Zealand criminal justice system has been built upon certain fundamental principles several of which are challenged by this bill amongst them the tenet that it is preferable for a guilty person to be wrongly acquitted than an innocent person to be wrongly convicted. It is an inevitable corollary of maintaining the fundamental rights of accused persons that occasionally the guilty will escape but the risks involved in eroding such rights clearly outweigh any of the benefits proposed by the bill.” In other words it is better that 10 guilty persons escape than one innocent person suffer. These double jeopardy exceptions are controversial they are potentially dangerous and time will certainly tell whether we are correct in being cautious suspicious and against them. I certainly hope that in the Committee stage we can have some sensible and rational debate in relation to double jeopardy. 
Having said that the other provisions of the bill are not nearly as controversial in my view. Adopting majority verdicts is probably a practical solution to an 11:1 stalemate or impasse. Other countries do not require unanimous jury decisions. In the UK it is 10:2 and in many Australian states it is also 10:2 with it being 11:1 in Victoria as is proposed by this bill. As one juror confessed and as was reported in the  
New Zealand Herald: “ 
fellow jurors in a rape trial were ready to agree to a guilty verdict because some were desperate for a cigarette and others wanted to get home to watch  
Coronation Street 
.” That is not good justice. 
At the end of the day speedy proper justice is required. Unnecessary delays are costly and cause extra anguish. Miscarriages of justice whilst not being able to be eliminated entirely must be eliminated as far as possible. There must be adequate checks and balances and the legislation must also be workable. National supports the bill with serious reservations going to the Committee stage only on the proviso that there are significant amendments some of which are in relation to the double jeopardy provisions.