Chauvel Charles: Criminal Procedure (Reform and Modernisation) Bill — Second Reading 
Chauvel Charles: Criminal Procedure (Reform and Modernisation) Bill — Second Reading 
[Volume:676;Page:21420] 
CHARLES CHAUVEL (Labour) 
: 
 The Labour Party issued a minority report at the time of the Justice and Electoral Committee reporting back to the House and we expressed concerns around a number of provisions in the Criminal Procedure (Reform and Modernisation) Bill. We were supportive of the general legislative exercise. As the Minister of Justice noted we originated the reform process in the Criminal Procedure (Simplification) Project some years ago and it is appropriate to pay tribute to the Hon Rick Barker as one of the Ministers who had carriage of that project. It is important to ensure that our criminal law is responsive and speedy. It is neither of those things in its entirety at the moment and it is appropriate for Parliament to be acting to try to speed up the process where it can be sped up. 
But that cannot come at the price of the rights of ordinary New Zealanders and the original proposal in the legislation to move the jury trial threshold drastically from 3 months to 3 years was not acceptable particularly as it involved a proposal to amend the New Zealand Bill of Rights Act in a substantive fashion without appropriate prior consultation. 
It was not appropriate to seek to make major inroads into the right to silence by requiring the defence to identify to the Crown in advance the basis on which it would be defending a charge. It is an ancient principle of our system of justice that the job of the prosecution is always to prove all the elements of the offence and that is how it should be. The State has enormous resources which it can deploy in the detection and punishment of alleged offences and when it does so there has to be some balancing against that enormous amount of resources and the right to silence is one of the most important of those balances. 
It was also inappropriate to have a provision in the original legislation and in the bill as reported back from the select committee to allow the court to proceed in the absence of the defendant in too wide a series of situations. The ability to deploy costs orders against the defendants or their counsel was of real concern. There were also real concerns about the circumstances in which a retrial could occur: a miscarriage of justice had to be “substantial” in order for there to be a retrial. Well in our view a miscarriage of justice is a miscarriage of justice. It should not have to be substantial at all to merit the right of citizens to be able to get the case against them re-presented. 
So those were concerns that we expressed during the select committee process. We expressed many of them in our minority report and we expressed them in correspondence to the Minister. I acknowledge the other parties in the House particularly the ACT Party and the Maori Party which eventually joined in our expression of concern. They made their own separate representations but they were along similar lines and they were right to do so. 
So it was that we managed after a period of time and some negotiation and an exchange of letters between the various parties involved and the Minister to come to the situation that we have today which is a better bill. It is a bill that now has a jury trial threshold of 2 years not the 3 months as the law currently is and not the 3 years that was proposed in the legislation. Now there is no great science I have to say behind the suggested 2 years but a simple examination of the Crimes Act shows that there are a number of offences where we could draw a line about what is serious and what is not such as male assaults female where there will now have to be a jury trial if the defendant so elects. That was not the case under the original proposal. I questioned at the time at the select committee whether we were really getting appropriate analysis from the officials about what savings in time and cost we would actually see by moving the threshold as originally proposed. The Minister has made some estimates in his second reading speech about what savings will now result. We will have to see about that but I think the threshold is better at 2 years than at 3 months. 
I do remain concerned that we do not have a convention in the House around amending the New Zealand Bill of Rights Act. This is only the second time that the Act has been substantively amended during the time that it has been in force. The last time was when we expanded the rights of New Zealanders by adding to the prohibited grounds of discrimination contained in section 19. We are taking away rights through this amendment and the process still leaves me quite disquieted. We have to do better and in fact what we need to do I think as a Parliament is finally bite the bullet and entrench the Act so that this sort of process—this auction of provisions in the legislation—cannot continue to occur. 
I am glad that the infringements concerning the right to silence have been dealt with. I am glad that the court’s ability to proceed in the absence of the defendant has been constrained. I am glad that the use of costs orders has been considerably constrained and I am glad about the changes to the wording on miscarriages of justice—the requirement that they must be substantial. We do have a better bill as a result of having safeguarded some fundamental rights through the agreed amendments which the Minister has foreshadowed. 
What I want to do is to foreshadow some further amendments. When I communicated to the Minister my caucus’s agreement to the changes that we negotiated I reserved the right to move some further amendments and I will be tabling a further Supplementary Order Paper during the Committee stage of the bill. I want to just deal very briefly with what those further amendments will do and I do this on the basis of encouraging other parties in the House to consider the changes with an open mind. 
I do think that there are some provisions that could be strengthened around the trials in absentia issues. I think we could have a better procedure for on-the-spot summonses. I think we could deal in a better way with costs orders and factoring in procedural non-compliance at the sentencing stage which the Chief Justice was very critical of and which still survives to an excessive degree in my view in the bill. We have a really good system in this country now but it is an informal system where a judge can give a sentencing indication. Defendants can say “Well I quite like the sound of that. I’ll avoid a trial and simply take the sentencing indication.” That saves a lot of court time but it is an informal system. I think we should put it on a statutory basis. We should probably limit the ability of the prosecution to obtain adjournments in some cases—again if we want to actually move the system forward on a speedy basis. There probably should be an end to the somewhat dated provisions that we have around when one can and cannot address a judge about the evidence. But those are amendments that I will put forward at the Committee of the whole House stage. 
The Minister mentioned that he thought the changes before the House would result in 36600 fewer court events a saving of between 6 and 9 weeks in the conclusion of jury trials and many millions of dollars of savings. He also talked about an enduring settlement around speeding up our criminal law and simplifying it. I am afraid those claims remain to be tested and I am unfortunately a bit sceptical about whether they are right. I think we need to undertake much more thoroughgoing reform in our criminal justice system starting with updating the now out-of-date substantive statutes from 1957 and 1961 and then dealing with the procedural and evidential issues. But those are questions for another day. It is a better bill than where we started and on that basis I commend it to the House.