Connell Brian: Judicature Amendment Bill (No 3) — Second Reading 
Connell Brian: Judicature Amendment Bill (No 3) — Second Reading 
[Volume:629;Page:1762] 
BRIAN CONNELL (National—Rakaia) 
: 
 I start by thanking the previous speaker for his strong endorsement of my contribution on the Government Administration Committee. I have to say that I am living proof that rehabilitation programmes do work and I am on the road to recovery. As has been noted the Government Administration Committee considered the bill and as a member of that committee I want to acknowledge the intelligent and constructive contribution its members made in helping to draft this legislation. It gives rise to some hope that members of Parliament from different political persuasions can work together constructively when they have a common purpose. 
I would also like to acknowledge the expert contribution from the advisers to the committee. As a layperson I found some of the issues a little complex and I thought that the advisers were very constructive in the advice they provided. I also acknowledge the excellent contribution from the committee clerk and her team. A number of quality submissions were presented to the select committee as part of its deliberations and they were extremely constructive. 
As has been noted the bill has three major components. I would like to touch on two of them. The first is the constitution of the Court of Appeal. As has already been noted the intention is to lift the number of permanent judges from seven to nine including the president. Of course this increase in personnel is being recommended in order to alleviate workload pressures. National members on the committee were satisfied that those changes were necessary and justified but we were not convinced easily—and I assure my colleagues that we actually did dot the i’s and cross the t’s on that issue. We had to be convinced that we were not appointing too many judges because as has been pointed out that would impact on lower courts. At the same time we did not want to appoint too few and thus frustrate the process of the Court of Appeal which in some ways is happening now. 
I thought I would provide the House with some information that was provided to the committee through its advisers. We sent the advisers away to gather information so they could forecast what the probable workload of the Court of Appeal might be. On reflection that was a difficult task. They came back and said that information on caseloads that is based on forecasts of key drivers—for example weekly crime levels and economic activity—is very difficult to provide and that really the best indicator of what the workload will be is to look at what has happened in the past. On reflection I think that is fair enough. Over the past decade from 1995 to 2004 the number of criminal prosecutions has varied reaching a peak in 2004. The information provided goes on to state that the number of convictions also reached a peak in 2004. 
But the part I was most convinced by and what led me to believe that we did need to increase the number of permanent judges by two was the advice from our advisers that the number of criminal appeals is also likely to be influenced by changes in criminal justice legislation and they named three pieces that have been passed in recent years: the Sentencing Act 2002 the Parole Act 2002 and the Parole (Extended Supervision) Amendment Act 2004. It makes good common sense to extrapolate that and say that if the sentences in the law are to be executed more rigorously then we can expect there will be more appeals and more work for the appeal court. 
The second issue I want to address very briefly is the delivery of judgments and this provides for greater flexibility in the delivery of Court of Appeal judgments. Currently under section 58(2)(a) of the Judicature Act any two judges of the Court of Appeal may deliver judgments to the court. Section 58(2)(a) has been interpreted as requiring judgments to be delivered in open court and as neither party including counsel is required to be present those decisions can in fact be delivered to a vacant court. That to me does not make for good use of judicial resources. So quite correctly in my view the Government Administration Committee has worked to allow greater flexibility to be introduced to cover off this issue. If this amendment is passed the Rules Committee will amend the rules to enable judgments to be delivered either in an open court or through the registrar as is the practice in both the Supreme Court and the High Court. To me that makes sense. 
Notwithstanding that issue one concern raised by a submitter attracted my attention—that is that some decisions were not being noted by the judge who had made them. That was the allegation. The concern was about interlocutory judgments and court minutes not identifying the judges involved in the decisions. This means that potentially the judge in the Court of Appeal may be the same judge who had reached a decision in the High Court without the appellant and his or her counsel being aware of it. I was concerned about that issue and I think rightfully so. Again the advisers were asked to provide some advice around that issue and on our instructions they wrote to the President of the Court of Appeal conveying that concern. 
The president in his response noted that if there had been occasions when interlocutory judgments and court minutes had not identified the judges making them then that would have arisen through inadvertence. That is all well and good and on the face of it I tended to accept that. But then I reflected on it a bit further. I asked the submitter who was a leading member of the judiciary whether this was actually common practice and he answered that it was not common practice but that it happened all too often. So despite the assurances of the President of the Court of Appeal that this was inadvertence it seemed that it was happening. When the advisers first went to the present President of the Court of Appeal the president said that it was happening by inadvertence but that he had been instructing judges to make sure they identified themselves when passing down their decisions. Again I was somewhat comforted by that but the concern still nagged me. With the best intent in the world I thought that with personnel change this could still happen and if it happened in one case and a Court of Appeal judge was sitting essentially in judgment of his own decision then that was wrong and it was a bad unsafe decision. 
Initially my position was—and I took the lead on this—that I wanted it written into statute. On reflection and with the support of members on the select committee on this issue—and I understand that the Minister also provided some support on it—we sought to have a note in the commentary. If members turn to page 3 of the commentary on the bill they will find that the last sentence of the third paragraph sums up our position very well. It reads: “However given that problems can arise where deciding Judges are not named we recommend that the Rules Committee consider amending the Rules accordingly.” So we have not written it into statute but we have given the judges concerned a clear steer of the intent of the Government Administration Committee because this issue was of concern and I think that concern was mirrored across most members of the committee. 
I conclude on that point and give a quick summary of my position: increasing the number of judges from seven to nine carries National’s support the commentary on the bill covers our concerns and I again thank the select committee members for their constructive contribution to the bill.