Power Simon: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
Power Simon: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
[Volume:676;Page:21591] 
Hon SIMON POWER (Minister of Justice) 
: 
 After 10 years’ gestation for the Criminal Procedure (Reform and Modernisation) Bill it would be remiss of me not to make a contribution on a range of issues that have arisen. In particular I will comment on Supplementary Order Paper 281 in my name recommending a series of amendments to the Committee of the whole House after pretty substantive discussions with a range of political parties over a reasonable period of time. Before I get on to those points I should just notify the Committee of the whole House that I withdraw the amendment on Supplementary Order Paper 283 to new section 277(10) that is to be inserted into the principal Act by schedule 3. I have been advised that there is a simple overlap between two subsections and it is just a matter to tidy up on the way through. 
It is worth reflecting that after something like seven discussion papers a Law Commission report an exposure draft bill 6 months at a select committee and numerous interactions with the legal profession the judiciary and just about anybody else who had an interest in this bill the bill came out of the select committee with quite a number of changes made to it after what can only be described as a comprehensive due diligence process. It became apparent though that there still remained some concern from some quarters of the House about a range of issues that they still required some amendment to. Remarkably the issues seemed similar for a number of parties so I was happy to sit down with them all and work our way through them. 
As part of that process it became apparent about halfway through the discussions that the legislation probably could have been advanced on a small majority. At that time it occurred to me that because the changes had been in gestation for such a long period of time and because they were to fundamentally alter the way the criminal justice system operated probably for the first time in 40 or 50 years on this magnitude it was worthwhile to pause and engage if you will excuse the rugby pun during the Rugby World Cup— 
Hon Maryan Street 
: You missed “touch”. 
Hon SIMON POWER 
: I did miss touch: touch pause engage. It was worthwhile to pause engage and talk to other political parties to see whether there was a way through this process. 
My thanks go to John Boscawen and the ACT Party who approached those negotiations absolutely in good faith. We had a range of discussions about issues that I have no doubt genuinely concerned the ACT Party’s position on a number of matters. I thank publicly John Boscawen for the way he conducted those negotiations with me and for the way he worked within his own caucus to see those negotiations end up where we are today. I thank Peter Dunne from United Future for his very constructive and determined advocacy on a number of points. I also thank the Maori Party which also made clear to me very early on two or three areas of objection it had. I was pleased that the negotiations with other political parties in the House were able to relieve the Maori Party of those concerns and then it too was able to pledge its support for the progression of this legislation. 
I also thank the Labour Party and a couple of people in that regard. First of all—and I know that he will probably deny it—I know how important this bill was to the Hon Rick Barker. I know that he spent a considerable amount of time as the former Minister for Courts trying to push this thing along. All I can say to that member is that probably of anybody else in the House he knows best how I feel. This is a huge piece of work and I was not going to let it come unstitched at the eleventh hour because there were three or four—or slightly more than that actually; five or six—areas where agreement could not be reached. Given the way that members of the Labour Party and particularly Charles Chauvel conducted themselves in negotiating these matters with me I was very satisfied. 
The nature of negotiations under MMP particularly when we are trying to find a broad consensus beyond just a bare majority means that not every party will get everything it wants. The truth is that that probably applied to every party in these negotiations not the least of which was National which had—and has I guess—slightly different views on what the right to silence is and what issues in dispute are. None the less we are where we are. I said publicly throughout this process that I would be practical and pragmatic about those discussions and I believe the Government was. Here we are today with broad agreement from the second-largest party in the Parliament the ACT Party the Maori Party and United Future—and I have not given up on the Greens just yet because I will address Kennedy Graham’s concerns. He asked me to reconsider the jury trial threshold on which I advise him in good faith that the Government will not do so at this point. I hope to be able to persuade him over the course of the next couple of calls that this bill is worth supporting and I intend to give that my best shot over the next 6 or 7 minutes. 
First of all it is worth the Committee just reflecting briefly on what Supplementary Order Paper 281 in my name does—where the compromises have been made and how much common ground we have come to. The Supplementary Order Paper amends the bill to retain a shorter 6-month limitation period for the least serious offences. It prescribes safeguards for defendants by circumscribing when the courts are able to proceed in the absence of the defendant an issue that I know is particularly of concern to Mr Boscawen. It removes the provisions requiring defendants to identify before trial issues in dispute—not the particulars not what was actually going to be argued but just issues in dispute—and removes the ability for a fact-finder to draw an adverse inference from a failure to identify issues in dispute. And of course it restricts the circumstances in which costs orders can be made and simplifies the miscarriage of justice test. 
Unless I have read it wrongly the Green Party supports all of that in one form or another—unless I have read it wrongly. The outstanding issue for the Green Party—I guess the big hurdle for it—seems to be the jury trial threshold issue. Before I get on to addressing that directly I will just sow a seed in the minds of Committee members here today now that those issues have been resolved and ask what effect this bill will have on victims on witnesses on court staff on jurors and on all the others who are in the court system. 
The number of sitting hours saved will be 9360. That is a vast reduction from the savings of the original bill which would have seen 16000 sitting hours being saved in our court system. But that is the nature of the system we work in. The number of court events saved before the agreement was to have been 43000; following the Supplementary Order Paper in my name the number is now 36650—that is individual court events saved. People will be able to get on with their lives and to move through the criminal justice system with 36000 fewer court events. The number of cases that no longer need to be designated for a jury trial was previously to have been somewhere between 1000 and 1400; it is now between 750 and 1200. The time to dispose of judge-alone or summary trials saved was previously to have been 5 or 6 weeks; here it is back to about 3 to 5 weeks so that is not too much of a loss. In respect of time to dispose of a trial saved in the District Court it was to have been 13 weeks; it is now 6 to 9 weeks—6 to 9 weeks. I will come back to why that is significant. The savings were originally to have been in the zone of $29 million but are now back to about $23 million - odd. 
So why does that time to disposal and the number of jury trials saved matter? I will talk about that in the context of the change to the threshold because this is why the change in the jury trial threshold matters. I will just spend a bit of time on that. The specification in the Attorney-General’s report under the New Zealand Bill of Rights Act about a 3-month threshold for a jury trial—as the case is now and will be until this bill is passed—was that it “has had a profoundly negative effect on the conduct of criminal litigation in this country causing serious delays in the criminal justice system which may raise far more serious concerns about access to justice.” It goes on to say that the proposed increase in the jury threshold—this was when it was to 3 years so I am not arguing about the substantive point—“would neither put New Zealand in breach of its international obligations” which was a point acknowledged by the Green Party “nor would it place defendants in this country at any comparative disadvantage to those in comparable jurisdictions.” The report notes that Canada which in my opinion is one of the most liberal common law jurisdictions in the world provides a threshold for jury trials at imprisonment for 5 years or more. 
There is very little historical justification for the current 3-month threshold which was originally based on the UK threshold at the time when the provision was enacted in New Zealand. But of course this no longer represents the UK position. Although the right to a jury trial—and this comes back to the time to disposal issue—is an important aspect of the criminal justice system the critical issue identified by the Attorney-General is not the threshold at which the trial is elected but whether the right to a fair trial is preserved. Most significantly and I really urge the Green Party to think about this another important constitutional right under the New Zealand Bill of Rights Act is the right to be tried without undue delay—the right to be tried without undue delay. That is why the time to disposal matters. 
When the absolute adherence to one right results in a negative impact on another as I think the Green Party is putting the position consideration must be given to the greater public good in redressing the balance to better ensure adherence to principles underpinning both rights—not just one right but both rights. And in this case we are not just talking about the right to a jury trial; we are talking fundamentally about the right of people to be tried without undue delay. When the court system and the justice system clog themselves up at the bottom end of the pipeline without addressing what should really be occurring in those systems but rather with game-playing and to-ing and fro-ing occurring at the front end of the process the right to receive a trial without undue delay is put at risk—is put at risk. I ask the Committee of the whole House to give that right under the New Zealand Bill of Rights Act some serious consideration—some serious consideration. 
And let us remember here that the criminal justice system and this legislation is not just about the rights of the defendant. There are other participants in the criminal justice system—witnesses victims jurors and the like—who find themselves in that system through no fault of their own. We as legislators have a responsibility when we pass legislation to have their interests in mind as much as the rights of the defendant. It is absolutely critical that any legislation we progress here today bears that in mind as we work our way through the Supplementary Order Papers.