Katene Rahui: Criminal Procedure (Reform and Modernisation) Bill — Second Reading 
Katene Rahui: Criminal Procedure (Reform and Modernisation) Bill — Second Reading 
[Volume:676;Page:21425] 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 The progress of the Criminal Procedure (Reform and Modernisation) Bill has been a fascinating insight into the politics of compromise. I say from the outset that the purpose of the bill is one with which we in the Maori Party have no argument. The intention of the legislation is to simplify criminal procedure and provide an enduring legislative framework that is fair reduces unnecessary delay is flexible and is able to take advantage of technological developments. 
The Maori Party supports having an efficient and effective justice system. By implication therefore the party supports the bill’s overall aims of modernising and speeding up the criminal justice system while ensuring a defendant’s right to a fair trial. This last issue—the right to a fair trial—is where the politics of compromise has come to the fore. I refer to a quote from Gilbert Chesterton: “Compromise used to mean that half a loaf was better than no bread. Among modern statesmen it really seems to mean that half a loaf; is better than a whole loaf.” Unfortunately for Mr Power and his Government but fortunately for the Maori Party that is very much the case for this bill—that is half a loaf is better than the whole loaf. 
Mr Power has had to significantly compromise the substance of this bill in the light of concerns raised by the Maori Party and of course by other parties around this House. We want to acknowledge the spirit of cooperation demonstrated by Mr Power in his negotiations with us and the efforts that he went to in order for this bill to proceed so we welcome the decision to remove from the bill the requirement for a defendant to identify issues in dispute before the trial—that is the right to silence provision. The “half-loaf” for Mr Power has meant retaining the right to silence lowering the threshold for the right to a jury trial from 3 years to 2 years and making changes to rules about non-attendance in court. That is much better than what was originally conceived which would have removed the right of an accused to remain silent and not have that held against them. 
The Maori Party could not have supported clause 64 of the bill which would have required criminal defendants to disclose their defence to the prosecution before trial. In making our position clear we were guided by the United Nations Declaration on the Rights of Indigenous Peoples particularly article 1: “Indigenous peoples have the right to the full enjoyment as a collective or as individuals of all human rights and fundamental freedoms …”. The original form of the bill eroded the right to be silent and it would have made Aotearoa one of the few nations in the world to take it away. 
The other major issue for us was the ability of the court to proceed in the absence of the defendant. Of course it is much easier to convict someone if that person is not present to defend his or her case. But for us it is a matter of out and out justice: the right to be heard to defend oneself. It is hard to understand how the Government could expect to gain support for having hearings proceed without the presence of the accused. 
The Attorney-General concluded that the particular provisions reversing a person’s right to be present at his or her own trial were inconsistent with the rights affirmed by section 25(e) of the New Zealand Bill of Rights Act. Section 25 relates to the minimum standards of criminal procedure and it states boldly: “Everyone who is charged with an offence has in relation to the determination of the charge the following minimum rights: … (e) the right to be present at the trial and to present a defence:”. Part-way through the negotiations the Minister of Justice attempted a partial accommodation by seeking to replace the wording “must proceed” in clause 128 with the new wording “may proceed”. The Maori Party was not satisfied that the proposal was sufficient to allay the concerns we had around the trial in absentia proposal so we advised the Minister that we could not agree to the inclusion of such a contentious proposition. We felt we were on good grounds. I return again to the comment of the Attorney-General: “The right of an accused person to minimum standards of criminal procedure is a fundamental human right recognised by article 14 of the International Covenant on Civil and Political Rights … and affirmed in [section] 25 of the New Zealand Bill of Rights.” 
Although no doubt the intention of the proposal to minimise delays and reduce inconvenience and stress to victims is one that we can fully understand it does not justify moving away from the basic human right that defendants need to be present to ensure that they are aware of what the case is against them for a start and then know how their case is proceeding. In sum we have been strongly opposed to the notion of presupposing that a trial can be undertaken without the accused being present. Although we understand and appreciate the frustration of delays caused by defendants failing to attend a court hearing we believe that the right for a defendant to be present at trial must be protected. There must be other approaches that can be taken to ensure that defendants are in attendance other than resorting to the most Draconian measure of having a trial proceed without the accused being present. In light of our concerns we were pleased with the compromise position from Mr Power that will limit the discretion of the court to proceed to procedural hearings only—that is only those hearings where no determination of guilt or innocence will be made. 
Finally in reference to the punishment of counsel by use of costs orders we take note of the advice that the court already has some limited discretion to impose court costs on counsel and defendants who fail without reasonable excuse to comply with procedural requirements. We believe that there are sufficient professional avenues in place to ensure that high standards are upheld by defendants and lawyers. We do not support the punitive approach of threatening costs as we cannot see that such an approach will in itself encourage better practice. We do however share the concern of the Government that lawyers must be able to be held to account for the services they provide for their clients but we suggest that the professional associations are the right and proper body to do this. Given that the provisions are already evident we do not accept that there is any need for the costs order provisions contained in the original bill. However we have again accepted the compromise put forward by Mr Power in terms of amending clause 361 to make it clear that such orders are expected to be used rarely and only for significant procedural non-compliance. According to the Minister this will set a very high test for the judiciary in deciding whether to make a costs order. 
The final point of concern is the jury trial threshold. The bill originally sought to raise the threshold at which a defendant could choose a jury trial from offences carrying a penalty of more than 3 months’ imprisonment to offences carrying a penalty of more than 3 years’ imprisonment. It was noted that this one change might result in up to 1400 fewer cases needing to be designated for trial by jury. Our concern however was that best expressed by the Dunedin Community Law Centre that the removal of the right to trial by jury might mean that some people may think that “justice has not been served and [they] may feel vulnerable having a sole judge grant the power of a prison sentence.” The Minister has removed the exceptional circumstances test and is now proposing to set the jury trial threshold at 2 years which although not optimal is still better than the 3 years originally proposed. 
We want to ensure that the reforms will ensure more timely justice for victims witnesses defendants and the community. We are confident that the changes accepted into law—even under compromise—will allow us to support this bill.