Parker David: Courts (Remote Participation) Bill — Third Reading 
Parker David: Courts (Remote Participation) Bill — Third Reading 
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Hon DAVID PARKER (Labour) 
: 
 I begin by congratulating the Minister of Justice on doing as he has described. I think that the way in which Parliament has conducted itself in respect of the Courts (Remote Participation) Bill in the last week has been exemplary. It is the sort of interchange we should have in respect of legislation and the sort the public wants us to have. We have actually built public confidence in this institution this week. Were there to be another ranking of the most trusted New Zealanders next week compared with our ranking last week we would maybe come up a notch although I suspect that we still would not be in the top half. 
Returning to the merits of this legislation I point out that there has never been disagreement that we ought to take advantage of this technology for things that do not adversely affect the interests of parties to litigation. The use of audiovisual technology to make it cheaper quicker and more convenient for people to participate in civil proceedings and particularly in call-over proceedings for criminal matters is to be applauded. The area the Opposition was very concerned about was in respect of the ability of a judge to have discretion to conduct a trial without the accused having the right to be present. I will dwell a little on why that seemed so clearly to be wrong but perhaps more on the process that led us to being so close to abrogating that civil liberty because I think it pointed to a mistake that was made within the ministries. 
When I started to think about this issue after we had heard from the Human Rights Commission and the New Zealand Law Society as to their opposition to it and tried to think about how injustices could be caused to the accused it quickly became apparent to me that there were a number of ways in which an injustice could occur. I have listed them previously in other stages in the debate but I will mention some of them now. For a start the right of the accused to participate by audiovisual link could be frustrated at the Department of Corrections end if Department of Corrections officers wanted to be disruptive. There could also be technological faults; it is a matter that I have not previously raised but there is always the possibility of technological failures which we have seen often enough at select committees when we hear submissions from a distance by way of audiovisual link. 
In addition various things happen at a trial that an accused must be able to see not only to protect the interests of the accused but also to maintain the sense that he or she has been dealt with fairly by the justice system. That is important in terms of maintaining public confidence in justice. One particular thing that would worry me if I were an accused would be if the person giving the main evidence for the prosecution could not see me staring at him or her at the time that witness was about to give evidence that was adverse to my interests and that I knew to be incorrect—and therefore I knew the witness was perjuring himself or herself. I think that having to stare at the accused—at the person who will go behind bars if convicted—affects the tension upon the witness. Therefore it affects the demeanour of the witness when he or she gives evidence and whether the evidence will be believed by the judge or the jury. That is one instance when it is important that the accused is there and able to face the accuser. 
Another instance relates to what can go wrong in a courtroom. On occasions—and it is very rare—there can be inappropriately cosy relationships between the defence and the prosecution. That sort of thing is less likely to happen if the accused is present and if it does happen it is important that the accused is there to see it so that the accused can say that it is not on and sack his or her counsel. Inappropriate things can happen in relation to a jury. A juror could fall asleep. Jurors could be handing around pictures that are irrelevant or have not gone through the normal evidence process and the accused has a right to see whether that is happening so as to protect his or her interests. The accused has the right to see whether someone in the gallery is showing signs that might be pejorative of the accused. The judge may have had prior dealings with the accused and be tempted to make snide or inappropriate remarks about the accused when he or she is not present. The accused has a right to know whether those things are happening so that the accused can protect his or her interests both at trial and at any subsequent proceedings like appeals. 
I think it is pretty obvious that this change was a substantial abrogation of the current civil liberty we all have to personally attend a trial where we are accused. I was very gratified that members of the Government acknowledged some of these arguments. I thank Simon Bridges for digging out some cases which were also referred to in the report to the Attorney-General by Crown Law. He noted that there were some instances where the accused was not able to appear at his or her own trial. But when we dug down into those cases we found that the accused was not there because the accused did not want to be there and had absconded from the trial. That shows those cases to be different from the more general principle that could have been brought about had the Government not agreed to an amendment right at the end of the Committee stage. 
I have read the report dated 27 November 2009 to the Attorney-General from Crown Law. It said in paragraph 5: “The use of AVL for the appearance of an accused person at trial appears to be uncommon in comparable jurisdictions at least without the accused person’s consent”. So it actually noted that there could be a problem. But I have to say that there was an incredibly once-over-lightly response once that problem was identified. Not one of the instances of possible injustice that I have referred to in this short speech was referred to in the analysis from Crown Law to the Attorney-General and I personally think that was a mistake. I will not call it slack; I just think that it made a mistake. It was a mistake not to be aware of what I think were pretty obvious possibilities of injustice arising from that legislation. Crown Law should have been alert to those from the fact that even in its own report it states that it “appears to be uncommon in comparable jurisdictions at least without the accused person’s consent”. 
I for one have a little less confidence in Crown Law than I did before I read this report because I think it made a mistake. I hope it has learnt a lesson from this legislation and that it has seen that when this bill was debated in Parliament Parliament saw fit to be a bit more protective of our civil liberties than Crown Law thought was appropriate when it was assessing this legislation in relation to the New Zealand Bill of Rights Act. 
In terms of the advice that came to the Justice and Electoral Committee I thought that the Ministry of Justice departmental report was less than perfect as well. Again its analysis of paragraph 65 and around there was a bit general. It tried to bluster that these things were happening overseas when in fact if one read it in detail one could see that there was not much justification based on overseas jurisdictions. Canada cannot have remote participation without the consent of the accused and it is the same in most parts of Australia. Maybe Australia is a wee bit different because of the huge geographic distances. That point was never brought out either. We never heard what the case was in the United States but I would be very very surprised if one can have a trial there without being personally present. The United Kingdom has only some pilot trials so it certainly does not have this rule either. So we were going out on our own in my opinion and that was not clear from the departmental advice that was provided to the select committee. We as committee members had to dig in order to find that. 
In respect of the conduct in this House I also thought that Wayne Mapp in the chair made an appropriate acknowledgment at one stage when he conceded that the change from having an unconditional right to appear at one’s trial to that effectively being at the discretion of the court albeit with some protections built around that discretion was a significant change. I think that was an appropriate acknowledgment for the Minister in the chair to make and I thank him for doing so. But it then raised a question. If the Minister in the chair can see that and if we in this Parliament can see it why could Crown Law not see that it was a significant change that actually required some proper analysis in terms of the New Zealand Bill of Rights Act? 
We then came to the intervention of the Minister of Justice. He had been listening to the debate—he was presumably in his office—and was sufficiently moved by the importance of these issues to come to the House. I thank the Minister for doing that. I know that on both sides of the House at times that does not happen. It is pretty hard to change track when one has departmental advice that one is right one has been to Cabinet and Cabinet has been convinced that one is right. It is actually quite hard to change one’s mind in that process and it shows strength of character on the part of the Minister that he was able to do so. It shows also the respect that he is held in by his Cabinet colleagues that he had the confidence that he could do that and his Cabinet would support him. I put that on record. 
I think that in the end this legislation shows that this Parliament can work to protect civil liberties. We have done so in this case. I was very concerned until the last that we were not going to get there. We had put up an amendment with a similar effect to the amendment that the Minister put through last night which was voted on first. The indication was that our amendment would not have been voted for by the Government. I thank Mr Garrett and members of the ACT Party members of the Maori Party and the members of the Green Party for their involvement in this debate. In a process sense I probably could have raised that issue earlier a bit more clearly with some other parties.