Barker Rick: Criminal Procedure Bill — First Reading 
Barker Rick: Criminal Procedure Bill — First Reading 
[Volume:618;Page:14212] 
Hon RICK BARKER (Associate Minister of Justice) 
 on behalf of the 
 Minister of Justice 
: I move  
That the Criminal Procedure Bill be now read a first time. 
 I also intend to move that the bill be referred to the Law and Order Committee for consideration. This bill contains criminal procedural forms that the Government has been working to develop since 2001. It responds to Law Commission recommendations and developments overseas particularly in the United Kingdom. It includes changes relating to jury trials exceptions to the double-jeopardy rule and reforms to preliminary hearings and disclosure. 
I turn to the matter of jury reforms first. This bill proposes to introduce 11:1 majority verdicts instead of the current requirement for unanimity. That is partly to address the problem of rogue jurors who by refusing to participate in the deliberations produce a hung jury for reasons that have nothing to do with the merits of the case. Retrials take time and money and prolong the ordeal for everyone involved including victims and witnesses. Alternatively sometimes a single juror is pressured by the other 11 to return a verdict against his or her conscience—which can be traumatic for that person. Majority verdicts will allow that dissent to be registered and therefore produce more honest results. They will also make jury tampering by bribery or intimidation more difficult for organised criminals to achieve. Although the majority verdict reform will inevitably attract comment and discussion it is not radical. The UK for example has had 10:2 majority verdicts since 1967. 
This bill also provides for trial by judge instead of jury in two circumstances: firstly when the trial is likely to be complex and longer than a month. Evidence suggests that jurors have trouble coping with very long trials particularly where there is a large amount of very complicated evidence. There is also provision for a judge-alone trial if there is evidence of jury intimidation which from time to time has been an issue in gang-related cases. For similar reasons new restrictions will be placed on the distribution of jury lists. 
Recently the Government announced a $9 million boost to jury fees. This bill contains further measures to make it easier to serve on juries. These include allowing jurors when summoned to defer jury service for up to 12 months to a more convenient time of their choice. It also becomes an offence for employers to prejudice the position of an employee by reason of that person’s absence on jury service. At the same time the penalty for failing to answer a summons will increase from $300 to $1000. 
The bill creates two exceptions to the double-jeopardy rule: tainted acquittal and cases of compelling new evidence. That is consistent with the law in the United Kingdom and with reforms proposed in Australia. The tainted acquittal exception will apply if an acquitted person is later found guilty of evading justice at the first trial by committing an offence such as perjury or intimidating a witness. That will ensure that those who resort to such tactics cannot benefit from their own wrongdoing and will therefore remove the incentive to offend in that way. This reform was recommended by the Law Commission and followed the case of Kevin Moore in which a gang member who was tried for murder persuaded a witness to give false evidence for him and was acquitted. Because Moore could not be tried again he literally got away with murder. 
The second exception relates to compelling new evidence. The reason for this exception is the importance particularly for victims of ensuring that the criminal justice system can achieve the right result for very serious crimes. There have been cases overseas where conclusive evidence of guilt has surfaced post-acquittal. It is my view that most New Zealanders would be outraged if that situation occurred here and our justice system was unable to bring the offenders to justice. 
The compelling new evidence exception departs from the criminal justice tradition of only one trial. For that reason it is subject to a long list of safeguards. The exception will apply only to offences with a maximum term of imprisonment of more than 14 years such as murder rape and class A drug dealing. The evidence must have been unavailable at the time of the first trial so that the police have no incentive to indulge in sloppy practice. The evidence must be reliable and indicate with a high degree of probability that the acquitted person is in fact guilty. Consent to proceed in cases of compelling new evidence must be brought at each stage. The police will not be allowed to reinvestigate and acquit a person without consent from the Solicitor-General. The Court of Appeal must in turn be satisfied following reinvestigation that compelling new evidence of guilt exists and that a retrial would be in the interests of justice. The double-jeopardy exceptions are not retrospective which means that acquittals obtained before the legislation commences will remain intact. 
I welcome submissions on this issue. I would also like the Law and Order Committee to consider whether a 14-year threshold for compelling new evidence will capture the right kinds of offences and whether the tainted acquittal exception should apply only when an administration of justice offence has been committed by third parties. 
The third major issue of reform in this bill relates to the preliminary hearings procedure. Preliminary hearings are currently held before jury trials to act as a filter to ensure that improper prosecutions are dismissed at an early stage. However in practice police almost always—in about 93 percent of cases—collect sufficient evidence against all alleged offenders to satisfy the court that there is a sound basis on which to proceed. For this and other reasons the Law Commission concluded that preliminary hearings are largely redundant. Such hearings also require victims and other witnesses to duplicate their court appearances which is both stressful and unduly demanding. The bill therefore provides that the standard pre-trial procedure will be for parties to present their evidence in the form of written statements with automatic committal for trial unless either party applies for an oral hearing. Oral hearings will be permitted only in limited circumstances where either party wishes to examine one or more of the witnesses and a District Court judge agrees that it is appropriate. This will reduce demands on court staff and facilities and may mean that some cases can be more quickly disposed of. 
In the absence of a preliminary hearing it is important to ensure that adequate and timely disclosure still occurs so that defendants can prepare their cases and determine how to plead. At present prosecution disclosure before a trial is regulated by a mixture of case law and statutory rules under the old Official Information Act and the Privacy Act. This bill codifies disclosure requirements. Under these procedures the prosecution is required to disclose to the defence all relevant information unless there is a good reason to withhold it. Defendants also have to disclose obligations relating to alibi evidence and notice of intention to call expert witnesses. In some circumstances defendants will also be able to obtain information held by third parties such as the Institute of Environmental Science and Research. One issue the select committee considering this bill may wish to explore is whether an equivalent right should be available to the prosecution—for example if it wished to obtain material used by the defence experts in preparing its brief. 
Overall this bill contains numerous amendments to criminal procedure legislation all designed to ensure that criminal proceedings can be more efficiently managed while ensuring maximum fairness for everyone involved. I recommend that the bill be referred to the Law and Order Committee for consideration. I commend the bill to the House.