Graham Kennedy: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
Graham Kennedy: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
[Volume:676;Page:21587] 
Dr KENNEDY GRAHAM (Green) 
: 
 I do not want to take up too much of the Committee’s time in view of the need for speed. Let me begin first by paying tribute to the Ministers starting with the Hon Rick Barker right through obviously to the Hon Simon Power and Ministers in between for the indefatigable work that has been undertaken on this Criminal Procedure (Reform and Modernisation) Bill. It is a 10-year project more or less and a huge amount of effort has gone in both by officials whom I also acknowledge and by Ministers. It is not a simple task. We understand the thrust of the bill. We understand the well-intentioned purpose of the bill. We would prefer not to stand in the way and we know that we will not be doing so. 
Let me also say that the Green Party is quite pleased to support the Supplementary Order Papers submitted by the Minister and as well by Charles Chauvel as in our view they make improvements upon the improvements. I recognise also the quite extraordinary efforts that the Minister has put in in the last couple of weeks to get agreement. On that basis I can only proceed from now with just a touch of sorrow that we do not appear to have complete unanimity in the Committee in the sense of at least netting us all although hope can spring eternal for 5 or 10 minutes in the sense that we for our part have whittled down our concerns—at least our concerns have been met—to the point of only three remaining. It might not be beyond the realm of the imagination at least if not the possible that we could arrive at a consensus on those three concerns as well which no doubt would trigger support from the Green Party. 
I will identify the three concerns and in the best constructive spirit we have put on the Table two Supplementary Order Papers and a late amendment to address those three issues. Each of them is in the context of the broad theoretical comments I made in my second reading speech. It seems to me that the essence here is a trade-off between judicial efficiency and the principles of fairness. We will come down on different sides on that and that perhaps reflects the different political philosophy as to which constituent segments of society we are representing. I did say that in my view we could strive to be as efficient in our judicial system as possible but not at the expense of fairness when we must not breach the perimeter of that fairness for the sake of any marginal incremental efficiency. I recognise that different judgments can be made on that. 
Where we appear to differ at the moment is on three areas. Let me fast-forward to clause 128 where I understand that the clause as it is proposed now would have the court proceed in the absence of a defendant providing the court is satisfied that the defendant will not be prejudiced. We could have a defendant having a reasonable excuse that the judge recognises as a reasonable excuse but the judge proceeding in the absence of the defendant. We think that that unduly penalises the defendant and in Supplementary Order Paper 284 we propose adding the four words “and the defendant consents” at the end of clause 128(3). In our view that returns the balance of fairness as we identify it to the status quo ante. I recommend that particular amendment to the Minister of Justice and to the Committee. 
The second amendment is to clause 431. We have it in Supplementary Order Paper 285. It is here that we part company on the overall thrust. The Sentencing Act identifies around 15 aggravating factors that a judge can take into account in determining a sentence and can increase a sentence if any of those aggravating factors are present but they are all pertaining to the substance of the crime. Particular cruelty abuse of a position of authority or trust and so on all pertain to the crime. None of them pertain to the procedure of the trial. Now we would have the bill allowing a judge to increase a sentence—increase incarceration—purely through procedural non-compliance in the course of the trial. We believe that procedural non-compliance is in a category of its own and should not be included in an aggravating sentencing factor of that kind. We simply propose that clause 431 be omitted and in our view that would also be within the context of that balance between fairness and efficiency. 
Now I move to the big one for us and it pertains to the jury trial issue which has been there right throughout from the very beginning. We recognise the complexity of this matter. I have been through pretty thoroughly the comments from the Attorney-General on it in his New Zealand Bill of Rights Act review. I have looked at the submissions from the Law Society the Law Commission the District Court judges and those against the idea and at submissions from the community law centres the Human Rights Commission the Criminal Bar Association and others. I see opinion coming down on either side if we increase the threshold from 3 months to 3 years and that was the basis on which the submissions were submitted. 
I understand that the argument is to increase it to a certain level for the sake of efficiency and financial cost-cutting. We understand the reason. In our view that reason is not sufficient to alter the New Zealand Bill of Rights Act. We understand that the New Zealand Bill of Rights Act is not entrenched. It should be; it is not. We understand that the right to a jury trial is not a universal human right. We understand that there are different systems. We understand that in the common law system it is arbitrary—or at least it is for societal determination—where the threshold of a jury trial is. We recognise that it can be 5 years in Canada and 10 years elsewhere. We recognise that there is probably agreement as I think Charles Chauvel said that it is not a science; it is an art. Let us get the art correct. The Minister in the chair the Minister of Justice might wish to comment on this but our understanding from some of the submissions is that it is by no means proven that there would be massive and guaranteed cost savings gained by raising the threshold. That gives us pause as well. 
We speak for those people out there in New Zealand society who may choose to engage in civil disobedience who may choose to go to the edge of the law and at times consciously violate the law in a peaceful manner for what they take to be a higher purpose. We will stand firm for those people. We do not think that cost cutting and the efficiency of the judicial machinery should be at the prejudice of those people who are well intentioned. Let them have a fair trial at 3 months; let them be able to elect a jury. There are cases there is argumentation that if we raise it beyond 3 months we are prejudicing the inherent right to a fair trial of certain people. The Minister might wish to dispute that but that is the position we take. We take it in full responsibility for them and in full recognition of the thrust of the bill. It is sufficiently important for us to oppose this bill on that point alone with great sorrow because we know the amount of work that has gone into it we know the complexity and we know the well-intentioned effort. We will not compromise on that point and I hope that that is respected. 
I do appeal at this last minute to the Minister the Government and the Committee to understand where we are coming from on this point and at this late stage to drop that reference to 2 years—instead of 3 years it is 2 years; we understand that point too—and keep it at 3 months and that would make the difference. We have submitted an amendment at the end. It is late but it is on the Table. I do not need to go into detail as we have been here long enough to know how it works. It would simply restore the situation to the current law of 3 months for an election of jury trial. I appeal to the Minister and others to accept that and then indeed we would probably have unanimity.