Criminal Procedure Bill — In Committee 
Criminal Procedure Bill — In Committee 
[Volume:638;Page:8240] 
Criminal Procedure Bill 
In Committee 
Debate resumed from 20 March. 
Part 1 Crimes Act 1961 ( 
continued 
)  
KATE WILKINSON (National) 
: 
 This bill displays an element of jurisprudential ignorance. To be honest to say that we are absolutely convinced of its merits would be somewhat of an exaggeration but we will assist the bill past the Committee stage. 
In continuing my address regarding Part 1 as I have explained I will be moving a Supplementary Order Paper in relation to the two exceptions provided for in the bill being exceptions against the rule of double jeopardy. It is well understood that a person should not be tried for the same crime more than once. The State should not be able to have a go at getting a conviction fail and then have another go and another go. That is not justice. The State should not be allowed to get lazy by not doing its investigation not doing its prosecution properly and then just trying the case again. 
The two exceptions proposed in this bill relate to tainted acquittal—for example that obtained through perjury—and to the new and compelling evidence exception. My amendment will omit the tainted acquittal rule in its entirety and it should be so removed. Also it will narrow down the new and compelling evidence exception to that obtained only through DNA technology—a very narrow exception indeed. 
I am concerned that the exceptions to the rule of double jeopardy proposed by this bill arise because of one solitary case—that of Mr Moore who as I explained previously was charged and acquitted of murder. He persuaded a witness to give false evidence leading to that acquittal and was later charged and sentenced for perverting the course of justice. It is commonly said and is well known by most in this Chamber that a law change made on the basis of one case makes for bad law and this bill in this regard is bad law. Why not for example merely increase the penalty for perverting the course of justice rather than destroy such a well-established enshrined principle of our justice system? If the punishment is the equivalent of the avoided criminal conviction then the result is the same without attempting to change a well-established principle of law. 
We all know that it is better that 10 guilty people escape than one innocent person suffers. I was pleased to hear the same quote endorsed by Mr Chauvel just yesterday in relation to the Criminal Proceeds (Recovery) Bill. 
Christopher Finlayson 
: I wouldn’t take any notice of him. 
KATE WILKINSON 
: He was right in that case. He was right. 
Hon Maurice Williamson 
: The member goes too far! 
KATE WILKINSON 
: Perhaps. This is not about protecting criminals; this is about protecting the victims who have been accused of a crime. There is a presumption of innocence and no one who has been finally acquitted or pardoned of an offence should be tried or punished for it again. 
The Law and Order Committee report notes that discovering new and compelling evidence after a trial has become more likely with the development of technology. That is why I am suggesting the very narrow exception of that obtained through DNA technology only. That report also suggested two exceptions to double jeopardy—that of tainted acquittal and new and compelling evidence. Although we are not happy that there be any exceptions we do want to record particular caution about any proposals for such exceptions. 
As I have said penalties for perverting the course of justice can easily be expanded thereby preserving the principle of double jeopardy at least in relation to any tainted acquittal. In relation to new and compelling evidence we believe that additional specificity is needed as to the nature of such evidence and that is why Supplementary Order Paper 51 in my name specifically restricts any new and compelling evidence to that obtained by DNA technology. To quote from Judith Ablett-Kerr QC in her submission on the bill— 
Hon Maurice Williamson 
: A very good lady. 
KATE WILKINSON 
: She is a great lady. She said in her submission: “The New Zealand criminal justice system has been built upon certain fundamental principles several of which are challenged by this bill amongst them the tenet that it is preferable for a guilty person to be wrongly acquitted than an innocent person to be wrongly convicted. It is an inevitable corollary of maintaining the fundamental rights of accused persons that occasionally the guilty will escape but the risks involved in eroding such rights clearly outweigh any benefits proposed by the bill.” I urge the Committee to vote for the amendment on the Supplementary Order Paper that I have proposed. It is sensible and it is pragmatic. It is not perfect but it is more perfect than the bill itself. 
Speaking generally to Part 1 however I say we should reflect on what the purpose of the bill actually is. The bill is all about areas of criminal procedure. It is about maximising efficiency and fairness in the criminal justice system. The key areas of reform focused on in this bill are: trial by judge alone in exceptional circumstances; two exceptions to the rule against double jeopardy which we are opposing and which I have already mentioned; majority verdicts of juries—11 to one and not the unanimous 12 to none; the codification of criminal disclosure a convoluted four-stage regime that I hope to address in a call on the relevant part; and the partial abolition of preliminary hearings commonly known as depositions which we will also be opposing and to which my very learned colleague on my left Mr Chester Borrows has proposed a very wise amendment on Supplementary Order Paper 50. 
However what this bill does not do which has been noted and I quote from a senior lecturer in evidence in criminal procedure at the University of Auckland School of Law a Mr Scott Optican who should know is “address some of the real issues in criminal procedure upon which attention should be focussed such as trial delays”—and those have not been addressed in all the time since I have been in Parliament—“making sure criminal defendants’ lawyers have adequate resources to defend their cases and source expert witnesses better training for judges prosecutors and lawyers in the increasing use of science and technology in trials dealing with complex scientific evidence and sorting out some of the common law under the New Zealand Bill of Rights Act.” 
This bill does not inspire confidence in dealing with any of those outstanding criminal procedure issues. It tries to amend five Acts and attempts to codify requirements that have been described as: “What we are seeing in this bill is the ascendancy of a crime control model of criminal procedure dedicated to making it easier to win convictions over an adjudicative process model dedicated to principles of fair treatment and natural justice.” In other words natural justice should not be sacrificed for easier convictions. I will seek a call on that provision at a later time but in an attempt at being fair I will allow other members of the Committee to take a call on Part 1. 
RUSSELL FAIRBROTHER (Labour) 
: 
 I rise to speak in support of the Criminal Procedure Bill and I am appalled at the tripe that has been trotted out by the previous speaker Kate Wilkinson—a member who has in fact had the privilege of being admitted to the Bar. 
The double jeopardy rule is an age-old rule that was created prior even to the discovery of fingerprint evidence. The age-old double jeopardy rule has survived the creation of fingerprint evidence photographic evidence DNA evidence and  
Simpson v Attorney-General 
 which led to the rules of disclosure we now have in New Zealand. Mike Bungay QC said at the time of the Court of Appeal decision which entitled the defence to access the police file that this was the first step towards requiring defence disclosure. Mike Bungay QC was quite right on that. 
I remember the day when the defence first got access to police files. In fact I was conducting a murder trial in Gisborne at the time and the trial was adjourned while we got access to the policeman’s notebook. We found therein that he had made an offer to my client that if my client was to make certain statements he would be given certain benefits. That had not been disclosed to the court. Upon that being disclosed my client was acquitted on the charge of murder and was allowed to go on his merry way home where he has lived safely ever since—as has the community around him. 
The point I am making is simply that the rules have changed and changed rapidly since the double jeopardy rule was created. The double jeopardy rule is a reflection of the English development of the common criminal law whereby the State was reflected in the landowning gentry and the people commonly charged with criminal offences were the servants or effectively the slaves of that landowning gentry. So a number of protections were brought into our criminal law that balanced that imbalance of power. Since those days we have had a great levelling of the playing field and we are moving away from the game of justice to the pursuit of truth and anybody who can stand in this Chamber and say that the pursuit of truth is not a worthy ideal in a courtroom is someone who should reassess his or her values and the content of what he or she is saying. 
No longer should we have our criminal law inhibited by rules that no one can justify because they have long passed their relevance. No longer should we have our juries sitting and hearing evidence that is artificially distorted because some historical rule requires some evidence to be withheld from them. This House just a few months ago moved away from that by introducing the new Evidence Act which enables the court to offer effectively what is the best evidence. That was a move forward in the right direction and was heralded by every speaker in this House. Every speaker in this House thought it was time the new Evidence Act came into force. Of course the corollary of that is the Criminal Procedure Bill. Life in the courtroom in 2007 is very different from life in the courtroom in 1987 more different from life in the courtroom in 1957 and fundamentally different from life in the courtroom in 1907. Today we have a facility where the defence have access to all the material—except that of opinion—that has been amassed by the police and have a chance to peruse it and advance against the high standard of proof the prospect of a reasonable doubt based on the same material that the police bring before the court. 
This is a new playing field. It is a playing field that redefines our criminal law. Such a playing field requires the re-examination of some old bastions that have slowly become shibboleths and otiose in the present day. The double jeopardy rule is one of those rules that no layperson can understand. If one explains to one’s neighbour what goes on in a trial—that jurors hear some horrific evidence apply their earnest efforts to it and a verdict results—the neighbour says it is just a bit of a game because there are rules that protect justice and the truth from coming out. It is a totally disillusioning process and it is no wonder we have TV shows newspaper articles and books published that all cast doubt on verdicts in major trials in this country. The writers of those TV shows newspapers and books know they are on good ground. They know they are talking about a game of justice rather than the pursuit of truth. 
The double jeopardy rule is under attack by the Criminal Procedure Bill—and in a very timid way I have to say and perhaps a regrettably timid way but progress is always slow—but that merely recognises the criminal law in 2007. The double jeopardy rule is a rule that the layperson will not understand. That should be our measure in this Committee when we consider what is right in criminal law. What will the layperson understand when we erode the double jeopardy rule? Will he or she understand that we are continuing with this tripe that it is better that 10 guilty people go free than one innocent person be convicted? That is a phrase I have never understood. It justifies nothing; it is a mere excuse and an apology for the game of justice. It proves absolutely nothing. 
Every trial is self-contained and every trial must be a pursuit of the truth. If a person has been wrongfully acquitted and if correct evidence emerges that shows it was a wrongful acquittal then there is no common-sense or legal reason why that person should not be retried. The days have long gone when trials were conducted on opinionated evidence when Alfred Hanlon of Dunedin could rail forth with his Marshall Hall type of address that was high on rhetoric high on emotion and low on fact persuading illiterate jurors that the way to go was to protect the innocent client because the police had no substantial evidence. Courts these days become venues for the examination of scientific inquiry and evidence where the defence give a careful measured response. There is no fear that people who are wrongfully acquitted will be oppressed by the State because to bring a new charge based on fresh evidence or based on the tainted evidence rule requires very careful steady steps that require the approval of a court before the matter can proceed. 
We have a precedent for that. We have a precedent in corruption charges under our Crimes Act which requires the High Court to approve the laying of charges. No one carps at that; no one says it is an infringement on anybody’s liberty. I simply say to those who carp on with the old-fashioned unthinking quotes that were created two centuries ago that this is the time when we should forge forward with a criminal law that reflects New Zealand. 
That takes me to the second issue which is the question of depositions. I am not sure whether that is in the part I am talking about now or in a new part. 
Simon Power 
: No we’re not. 
RUSSELL FAIRBROTHER 
: We are not dealing with that. Well I will save my valuable words on it for the next part. 
I simply conclude on the argument that the double jeopardy rule has some mystical magical quality. We got rid of witchcraft as a common practice. Witchcraft now lives in the realm of the cosmic and irrelevant. So too will the double jeopardy rule. The sooner it goes the sooner we will have the pursuit of truth in our courtroom and we will abolish this expensive time-consuming stress-creating game of justice. 
CHESTER BORROWS (National—Whanganui) 
: 
 I am pleased that Russell Fairbrother introduced the phrase “the pursuit of truth” in respect of the justice system. It reminds me very much of an often quoted dictum from Judge Andrew Becroft whom I often quote late at night. As a new prosecutor in the Hawera District Court and trying to struggle with the rules of evidence—as a police officer does from time to time—I pleaded to the judge: “If we are pursuing the truth here—”. Judge Becroft told me to sit down and reminded me that we are not pursuing the truth in court. He said: “If we were pursuing the truth we would have the rack back Mr Borrows.” 
In actual fact we have a set of rules of law that a lot of people do not understand. A lot of rules from time to time appear to be unusual and to be running against the pursuit of truth. But they are there for particularly important reasons. I find it really unusual too that my friend over yonder Russell Fairbrother decided to talk about the double jeopardy rules and how they were there long before things like fingerprints. It is interesting in the Kevin Moore case that the reason why Moore concocted evidence was to try to explain why his fingerprints were found in the home of the person he murdered. He got his mate to come along and say they had gone to the house to do a drug deal which explained the presence of Moore’s fingerprints. 
Another interesting or amazing situation is that this Government decided to introduce a law in respect of double jeopardy in spite of the myriad of jailhouse confessions—or supposed confessions—that come after a number of trials have been tossed out because those jailhouse confessions have proved to be unsafe. In fact if we look at our  
R v Moore 
 case we see that none of it had anything to do with changes in technology. It was solely around someone getting up in court and telling lies which is the whole reason why the double jeopardy law was introduced in the first place. 
It is this Government’s proposition that we should institute a double jeopardy law to enable people to be tried for a second time for the same crime. That proposition is on the basis of a one-off incident that occurred in New Plymouth with a Black Power gang member who was convicted on the basis of his mate getting up in court and telling lies. The National Party has decided that it will support the double jeopardy provision only around DNA evidence in the Criminal Procedure Bill and will not support anything else in relation to double jeopardy. I have to accept that changes in technology that now enable us to obtain DNA from material that we could not obtain DNA from 10 years ago are leading to convictions today and overturning injustices that have occurred. 
In Part 1 of this bill the first proposal is that a judge can order a judge-alone trial for complex cases and for cases where there is intimidation of juries or where there is a real threat of intimidation of juries. I can certainly see the logic of that. To take 12 good men and true—to use a sexist quote from times gone by—put them on a jury select them by dubious measures and then subject them for instance to a 5-week complicated fraud case seems to be me to be absolutely ridiculous and completely ripe for a judge-alone matter. 
 When we look at the way that barristers and solicitors have traditionally selected juries we see that if someone does not want to be on a jury the best way not to be selected is to turn up in a suit with a briefcase—whether the person is a male or female. That person will not be selected because he or she will look smart enough to see through whatever the defence counsel will throw up. I can say that having been defence counsel in at least one jury trial in my short career. 
To address what bothers me though I turn the Minister’s eye to new section 378C of the new Crimes Act “Consent of Solicitor-General required in certain circumstances …”. I have a number of questions that I wish to put to the Minister over the course of this Committee stage because this new section appears to do some incredibly interesting things for which there does not appear to be any sort of precedent whatever. New section 378C(1) provides that where a member of the police has good cause to suspect that there has been a tainted acquittal of a previously convicted defendant he or she may seek permission from the Solicitor-General to investigate. New section 378C(2) allows that to happen. If the police provide that evidence to the Solicitor-General the Solicitor-General will give them permission to investigate. Well that is great. 
Then we get to new section 378C(3) and see that for some reason as soon as the police are given the power to investigate they have all sorts of unwarranted powers that do not seem to be replicated anywhere else within the law. New section 378(3)(a) for instance allows for questioning the acquitted person or any other person. So I ask the Minister to advise us as to who in this country can be safe from unreasonable questioning. That paragraph states: “questioning the acquitted person or any other person:”—any other person at all. I assume then because the paragraph does not state anything different from this that the police have the power to detain people for the purpose of questioning. 
New section 378C(3)(b) refers to “searching the acquitted person or any other person:”. That paragraph does not say “with a warrant” or “without warrant”; it just states that the police can search an acquitted person or any other person and it allows a huge wide-ranging power that is not replicated anywhere else in the law. New section 378C(3)(c) provides for the same search without warrant to “any premises or vehicles:”. I do not see where that provision is replicated anywhere else in the law and the provision does not seem to be covered by the Attorney-General’s New Zealand Bill of Rights Act report on this legislation—it does not seem to be covered anywhere. 
I cannot understand then the following paragraph (d) which states that “any thing” can be seized. What the hell is that supposed to mean? If we look for instance at the powers of search under section 202B of the Crimes Act which relates to searching for offensive weapons and substances we see that the specific power states: “Where any constable has reasonable grounds for believing that a person is committing an offence against section 202A(4)(a) he may—(a) stop and search that person and any package or receptacle he has with him that the constable has reasonable grounds for believing contains any knife offensive weapon or disabling substance and may detain that person for as long as is reasonably necessary to conduct that search;” The section does not talk about requiring a warrant to do that and the reason for that is that it is a power of search without warrant. I say to the Minister that if we look back at the bill we see that it does not provide any of the provisions that section 202B of the Crimes Act does; it is just completely open-ended and I wonder where on earth that came from. 
Given that the power under paragraph (b) provides for searching the acquitted person or any other person my next question is how any New Zealander knows that he or she will not be subject to a search pursuant to this legislation without warrant at any time anywhere. In respect of the provision that goes on to offer the same unwarranted powers to search premises or vehicles how do New Zealanders know they will not be searched in their own home or vehicle as they are driving down the street? This does not just apply to the acquitted person; it applies to any person. I want to know how that happened and why that is not covered in the report of the Attorney-General in respect of the powers under the New Zealand Bill of Rights Act. That Act protects for instance our freedom from unreasonable search and seizure. But we know for instance from the case of  
R v Shaheed 
 that even if the search is unlawful it may still be reasonable so that evidence may well be admitted. But there is no reference to that in any of the material that we have here. 
I find it incredible that we should have these circumstances. There seems to me to be a gaping hole that will allow all sorts of activities to go on as soon as the police have the ability to investigate as given to them by the Attorney-General. But the thing seems to be completely fraught with holes that will catch New Zealanders. Somebody may say that the provision is only for crimes that are punishable by 14 years of imprisonment or longer but the whole substance of the New Zealand Bill of Rights Act is that it applies to anybody in this country—the most holy and the most despicable. That is the whole purpose of having such an Act: to protect the most vulnerable in our community. What assurance can the Minister give us then that these provisions will not be used unreasonably against the average Joe Blow who walks the street at any time of the day or night in this country? This appears to be a “storm trooper” provision that would come straight out of Nazi Germany and maybe the member who suggested that we look at our history should look at her own. 
If we look at page 12 of the Law and Order Committee’s report under the heading “Encouraging inadequate investigations” we note that the report stated the following: “We note concerns that the exception may encourage sloppy police work. Most of us consider that the strict guidelines surrounding the provision will insure against any such effect. The requirements that the evidence must be new and that it could not have been given in the first proceedings have particular relevance.” I say to the Minister that it is my contention that what this bill does is to encourage exactly the sort of behaviour that the select committee was warned about. In spite of that warning the Government has gone on to attempt to enact a provision that allows unwarranted search unwarranted questioning and detention for the purpose of questioning and unwarranted search not only of vehicles that may be travelling on the street or may be parked at a premises but also of any premises whatever anywhere and at any time—and no limitations are placed on that. 
The police also have the power to seize any thing—funnily enough “thing” is not defined within the provisions of the bill. I find it incredible that the select committee ever envisaged that that provision would come before this Committee and I find it equally incredible that it was allowed to come before the Committee without those matters being addressed. I note that the provisions of the Crimes Act in relation to unwarranted search and seizure under section 202B and also under the Misuse of Drugs Act require the police executing their powers in respect of these matters to provide identification of themselves as police officers and to quote the provisions they are exercising at the time—the Act and the section. None of that is provided for within this bill either. 
The bill appears to me to run completely foul of the rule of law in this country and I really wonder where the advisers came from in allowing that to proceed. I note from scanning the bill that there is no provision that requires a reference to or application for a search warrant under section 198 of the Summary Proceedings Act and no affidavit. But as soon as the police have the authority of the Solicitor-General to continue with the investigation—and no doubt that would require some level of evidence—they can go about these unwarranted activities. But if we look at the case that this is introduced on which is  
R v Moore 
 we see given the genesis of where that case came from that the only evidence the police could have given in that case was the sworn affidavit of the person who had given false evidence in court and who then went over and became a police witness. 
My last point is that I fail to understand how this legislation which transgresses so many fundamental rules of law in this country went before the Law and Order Committee. Why did the bill not go before the Justice and Electoral Committee where there would be some scrutiny by the members of that committee? I think it is unfair that legislation that contravenes so fundamentally things that are so dear to us should be allowed to transgress in this way. 
Hon MARK BURTON (Minister of Justice) 
: 
 I want to pick up on the member’s last point first. I think that if indeed as he seemed to be suggesting the provisions that he was concerned about in section 378C(3)(a) (b) (c) and (d) inserted by clause 7 of the Criminal Procedure Bill—he referred at length to each of those—existed in glorious isolation from other provisions then the concerns that he has raised would be valid. But one of the other principles that is perhaps equally important is that one reads the entire provision. If he had referred to section 378C(1) and (2) which of course will need to be satisfied as a prerequisite to any of the provisions in section 378C(3)(a) (b) (c) and (d)—[ 
Interruption 
] I did not interrupt the member. I am trying to answer the questions he has raised in the spirit of cooperation. The fact is if the member reads those parts they make very clear that the police need to have good cause to suspect that information obtained will implicate an acquitted person and then the police have to get the Solicitor-General’s consent. Those provisions which the member conveniently neglected to mention are an enormous additional hurdle—and quite rightly so. So I think that the concerns that the member has raised are in fact without real merit. 
I acknowledge the fine contribution from my colleague Russell Fairbrother. It was one of the most thoughtful and thought-provoking contributions I have heard in my 13 years in this House. I think he raises a fair challenge to the comments from both Kate Wilkinson and Chester Borrows in terms of the issue of double jeopardy. Frankly I think that Mr Fairbrother is probably right. The small steps in this bill are timid in this regard; perhaps it is appropriate that they be so and that we take such steps carefully. But I remind members that these are small steps that deal with two exceptional circumstances. The first circumstance is in terms of a tainted acquittal gained with an administration of justice defence. The second is where there is new and compelling evidence. If one goes back to the test that Mr Fairbrother put before members—that is how one could explain not using the advantages of information from technologies now available which were never conceived of when double jeopardy had its origins—then I think one sees that that test is a fair one to apply and is one that we should apply. 
So I think that the small tentative steps taken in this legislation are well justified and are backed by enormous changes in the quality of evidence available to support those steps being taken. 
CHRISTOPHER FINLAYSON (National) 
: 
 That was an atrocious contribution from the Minister Mark Burton—and indeed Mr Fairbrother’s modernist contribution to this debate was nothing short of atrocious. It illustrated an absolutely cavalier approach to the rule of law and to the fundamental rights of people who are charged with serious crimes. Indeed the Minister should heed the words of the ancient prophet Micah who said that we must adapt to changing times while holding fast to unchanging principles—and double jeopardy is one such fundamental principle of our criminal law. It is an ancient principle and it has been a key aspect of New Zealand’s criminal law as inherited from England from time immemorial. New Zealand law has always provided that a person acquitted of a crime can never be prosecuted again for the same offence. It is a basic safeguard of civil liberties in every legal system comparable with our own. I have not studied criminal procedure since Miss Alice taught me criminal procedure in 1976 but I have had a good look at this legislation and I find the more one looks at this legislation the more concerned one becomes. 
It is timely to remind members of this Committee of the main purposes of and the importance of the rule against double jeopardy. The first purpose is to prevent harassment. It is a fundamental purpose of the rule—which terminates criminal litigation—that it prevents harassment of an accused person by repeated prosecution for the same matter. I refer the Committee to what Justice Black said in the Supreme Court of the United States in  
Green v United States 
 in 1957: “The underlying idea—” [ 
Interruption 
] It is a fundamental principle but I notice that Mr Fairbrother scoffs. He should listen to this: “The underlying idea one that is deeply ingrained in at least the Anglo-American system of jurisprudence is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.” 
Hon Lianne Dalziel 
: It’s 50 years ago! 
CHRISTOPHER FINLAYSON 
: I point out to the Minister of Commerce those very important words “the State with all its resources and power”—as against the individual who is charged with a crime. We know that that imbalance is getting worse because of the failure of this crummy Government to do anything about legal aid so that people are adequately legally represented—and I will say more about that in the near future. But why should the State with all the resources and power at its disposal be allowed to make a repeated attempt to convict an individual? That is the fundamental reason why we have double jeopardy. 
The second reason is to avoid inconsistency and to secure the finality of verdicts. A consequence of the rule against double jeopardy is the protection of the administration of justice itself. The rule promotes confidence in court proceedings and in the finality of verdicts. As the Law Commission report in 2001 stated: “A clear corollary of the rule is that occasionally the guilty will escape punishment but that is inevitable in any system of justice that must accommodate conflicting interests and finite resources.” Mr Fairbrother as the most experienced criminal lawyer in this Committee knows that principle only too well because of all of the people he has represented over the years. 
The third point which is a fundamental principle is that the rule against double jeopardy promotes efficient investigation. The promotion of efficient investigation preceding prosecution of the original trial I would have thought was a principle that had considerable force. Giving the Crown an opportunity to revisit its case after an acquittal would provide perverse disincentives to investigating efficiently right at the outset. I am sure that Mr Fairbrother in the course of his career would say “Amen to that!”. There will be many instances where the Crown did not investigate properly so why should it be given the opportunity essentially to persecute a defendant so that it can get it right the second time? 
This is wholly unsatisfactory legislation and as Mr Borrows has said the law exists not just for the great and the good but for some of the most despicable members of our society because they are entitled to the protection of the law and not to be rounded up and disposed of—as happened in Nazi Germany for example. Some members of the Committee may have seen an excellent film which was on shortly before Christmas called  
Sophie Scholl 
. It was an excellent illustration of what happened when some young people tried to stand up to Hitler in Munich. We are entitled to the basic protections of the law—all people all New Zealanders are. 
So let us take a look at this legislation. As Kate Wilkinson has said section 378A in clause 7 is odious and we reject that section in its entirety—I certainly support what Kate Wilkinson has said about that. Section 378B in clause 7 will I understand be the subject of an amendment proffered by Kate Wilkinson in Supplementary Order Paper 51. The amendment makes a lot of sense because subsection (2) is tightened by the addition of a paragraph (c) requiring the obtaining of new evidence by DNA technology. So if the evidence is to be regarded as new firstly it must not have been given in the proceedings that resulted in the acquittal secondly it could not with the exercise of reasonable diligence have been given at those proceedings and thirdly it has been obtained by DNA technology. I consider that that tightens up that provision and I will come to section 378D shortly. 
As Mr Borrows said—and the Minister did not adequately answer this—section 378C in clause 7 really is quite troubling. Let us look at some of the things the police can do if the consent of the Solicitor-General is obtained. It beggars belief that in a liberal democracy like New Zealand’s consent could be granted to permit the police to question the acquitted person to search the acquitted person or any other person to search any premises or vehicles or seize any thing to take fingerprints or samples or to permit the conducting or commissioning of forensic tests and analyses. That really is very heavy-handed stuff and I am not satisfied that the safeguards the Minister referred to in section 378C are adequate. I agree with Mr Borrows that it is real storm trooper stuff. 
Finally I refer to section 378D in clause 7. As Kate Wilkinson said there need to be some safeguards if that section is to operate. She has very cleverly I think provided for those safeguards in her Supplementary Order Paper by tightening up section 378B(2). 
So there we have it. The National Party is very concerned about this legislation. I have some real concerns about clause 5 for example which changes the rules relating to jury trials but we are prepared to go along with that given the very limited nature of the changes proposed. We will be looking very carefully at that in practice. But there is a line beyond which one cannot go and the double jeopardy proposals here constitute that line. As I said this is odious legislation. It is unacceptable in any liberal democracy. It goes completely against an ancient principle the justification of which has time and time again in court case after court case been emphasised. That is why we will not support it and it is why we have proposed through Kate Wilkinson Supplementary Order Paper 51. 
NANDOR TANCZOS (Green) 
: 
 I think many people have had reason when looking at the principles around double jeopardy to question the value of it. I certainly did—for the first time really—when I read the court transcripts of the trial of Luke Donnelly for the killing of Chris Campbell. Members may remember that Chris Campbell was a leader of the Rastafarians in Ruatoria. 
Russell Fairbrother 
: A good man too. 
NANDOR TANCZOS 
: Thank you Mr Fairbrother. Chris Campbell was killed by Mr Donnelly. During a perhaps heated verbal interaction Luke Donnelly pulled out a shotgun and shot him. Chris Campbell fell to the ground and while he lay there wounded Luke Donnelly having used up the shotgun shells previously on his car and the like picked up a rifle and shot him again. Chris Campbell subsequently died from those wounds. Luke Donnelly was acquitted on all charges by a jury in I think the Hawke’s Bay. 
Russell Fairbrother 
: Gisborne. 
NANDOR TANCZOS 
: In Gisborne. When I read the transcripts of the case I was convinced that Chris Campbell was killed in cold blood and that Luke Donnelly should have to go on trial again. This bill would not cover that case because it was not a question of tainted evidence nor was it a question of new evidence—so this bill would not apply. But on further reflection I had to come to the conclusion that it should not apply and that the law should allow the rule against double jeopardy. Regardless of my strong personal belief that Chris Campbell was murdered in cold blood I think it is enormously dangerous for us to allow the State to keep prosecuting a person with all of the powers of the State being used against the limited resources of an individual member of society. 
I thank Mr Borrows for his contribution to the debate because I think he outlined the concerns exceptionally well in relation to tainted acquittals and new and compelling evidence. I want to touch a little more on the subject of new and compelling evidence. It was interesting to read in the report of the Law and Order Committee: “The Attorney-General’s section 7 report says that the new and compelling evidence exception is a  
prima facie 
 breach of section 26 of the Bill of Rights Act; and that it can not be justified under section 5 …”. 
My principal objection to the new and compelling evidence provisions is that I am just not sure that I can see any constraint on what kind of evidence might be allowed. The select committee’s report indicates that other evidence besides physical evidence that meets the requirement such as a confession will also be covered by this provision. That interested me. Does that apply to a jailhouse confession? Like other members perhaps I have been enormously concerned about some of the cases where jailhouse confessions have been crucial parts of the evidence. I particularly refer to the Scott Watson case where it was a crucial element in his conviction. It left me as someone who was not present at the trial but who was a spectator through the media enormously concerned about the effects of that evidence. It left me with continuing disquiet about his conviction. 
The police in this country have been criticised more than once for a tendency in serious homicide cases to decide who the main suspects are then look for evidence to convict them. I think there is something in that criticism. We also know that there have been cases in this country where those kinds of conditions of investigation have applied where evidence has been fabricated to secure a conviction. I have just to mention Arthur Allan Thomas to remind members about that. 
So I have to ask what the real protection is from a disgruntled member of the police who is certain that he or she knows who did it but has failed to secure a conviction proceeding to fabricate evidence in order to have another go. I do not think there is much protection actually and that leaves me with an ongoing concern about this legislation. 
I thought Mr Fairbrother’s contribution was a powerful one—and I think Mr Finlayson was perhaps slightly uncharitable in his comments—and there was much in the argument to take seriously. Nevertheless on reflection I remain concerned about the danger of opening up the double jeopardy rule. For that reason among others the Greens will be voting against this bill. But in order to tighten some of those exceptions we intend to support Kate Wilkinson’s Supplementary Order Paper. 
HONE HARAWIRA (Maori Party—Te Tai Tokerau) 
: 
 Kia ora Mr Chairperson. Kia ora tatou te Whare. I have been in the unique situation probably among those in this Chamber of having defended myself on criminal charges on a number of occasions—and successfully so. One of those was on charges arising from the  
Patu! 
 trials of 1981 which went for 2 years. They did not finish until December 1983. That was a particularly difficult time for me because the charges added up to a term of something like 96 years. 
I know for a fact that I just did not have the resources to mount the kind of defence that the prosecution was able to mount. They had police officers for miles they had police photographers they subpoenaed records and photographs and photographers from mainstream media including television. They had the Crown Law Office supporting their whole case. Essentially they had the power of the State lined up against those of us in the  
Patu! 
 court cases. In the end we did not have anything. 
You know it worries me to think that with all of that power the Government is now suggesting that it can do it again. And if it can do it again what is to stop it from then passing another piece of legislation to do it again and again until it gets a conviction? Once we breach this dam—it is kind of like the criminal proceeds legislation we were talking about last night—the whole lahar will go. The whole thing will go not just a trickle. The whole thing will break. 
I am actually quite ashamed of Russell Fairbrother for what he said about double jeopardy—that maybe it is OK to charge somebody twice. He more than anybody else in this Parliament ought to know that if the prosecution has not put together a case to convict then maybe they should not have taken the case in the first place. If they think they do have a case and they take it all the way through and lose that is the end of it. I know that in the case of the  
Patu! 
 court trials it was not our great defence that won it; it was the fact that I was able to call a witness who really just won the case for us. So after 2 years we won that case on the basis of Bishop Desmond Tutu taking the stand to speak in our defence. Because of that the jury was blown away. When he came into the courtroom to give evidence for me all the police stood up all the prison wardens stood up and all the public stood up. The prosecutor stood up and even the jury stood up. I know that at the end of the day that is the reason why we all got off. We had Bishop Desmond Tutu speaking on our behalf. 
The fact of the matter is that it took 2 years before we got to the end of that case. I would be desperately concerned to think that with all of the resources the Crown had behind it if it could not get a conviction after that time it should have had the opportunity to drag it on again and again. I am particularly concerned to think that if we allow it once we allow it again and again. 
The question was put that the amendment set out on Supplementary Order Paper 51 in the name of Kate Wilkinson to omit new section 378A from clause 7 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 60 
New Zealand National 48; Green Party 6; Maori Party 4; ACT New Zealand 2. 
Noes 61 
New Zealand Labour 49; New Zealand First 7; United Future 3; Progressive 1; Independent: Field. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 51 in the name of Kate Wilkinson to new section 378B in clause 7 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 60 
New Zealand National 48; Green Party 6; Maori Party 4; ACT New Zealand 2. 
Noes 61 
New Zealand Labour 49; New Zealand First 7; United Future 3; Progressive 1; Independent: Field 1. 
Amendment not agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 51 in the name of Kate Wilkinson to omit clause 8 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 60 
New Zealand National 48; Green Party 6; Maori Party 4; ACT New Zealand 2. 
Noes 61 
New Zealand Labour 49; New Zealand First 7; United Future 3; Progressive 1; Independent: Field 1. 
Amendment not agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 97 in the name of the Hon Mark Burton to Part 1 be agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed to. 
Ayes 109 
New Zealand Labour 49; New Zealand National 48; New Zealand First 7; United Future 3; Progressive 1; Independent: Field. 
Noes 12 
Green Party 6; Maori Party 4; ACT New Zealand 2. 
Part 1 as amended agreed to. 
Part 2 Criminal Disclosure 
The CHAIRPERSON (Hon Clem Simich) 
: The question now is that Part 2 clauses 17 to 57 which includes debate on schedules 1 and 2 stand part. 
KATE WILKINSON (National) 
: 
 I want to deal with the criminal disclosure requirements that are provided in Part 2 of the Criminal Procedure Bill. It is useful to remember the overall goal of the bill which is to maximise efficiency and fairness in the criminal justice system. Part 2 deals with criminal disclosure and establishes a fourfold disclosure regime. I would like the Minister to take a call on this when I have finished as to whether we really need such a detailed codified disclosure regime. The New Zealand Law Society does not believe that there is problem with the current disclosure regime. While largely uncodified the principles of disclosure are well established at common law and also under the Official Information Act and the Privacy Act legislation. Will this new fourfold disclosure regime provide speedier justice in accordance with the goal of the bill? Again I would be interested in the Minister’s response to that and in the Minister taking a call. As the New Zealand Law Society has submitted if the disclosure provisions are to be enacted they should be simplified using straightforward and sensible principles. 
This disclosure regime is so complicated that it needs a two-page diagram in the bill to illustrate how it might work. We now have initial disclosure then full disclosure by the prosecution then disclosure of certain information by the defence and fourthly we have disclosure in certain circumstances by third parties. One would have thought that when dealing with criminal procedure the submission of the New Zealand Law Society might be regarded and regarded well. Lawyers are the ones who deal with the laws we make on a day-to-day basis. The New Zealand Law Society submission suggested that the only codification of disclosure that might be required was firstly timetabling of disclosure; secondly enforcement of disclosure obligations; and thirdly third-party disclosure. 
But it states: “The proposed disclosure code creates an expensive and abstruse infrastructure of potential interlocutories that would have the potential to require a great deal more judge time. While the stated motivation is to replace depositions with this formal regime the bill’s disclosure provisions will apply equally to summary offences of which there are a much greater volume. Consequently there would be potential greatly to increase delays and cost with immense implications for legal aid. The criminal disclosure process as it currently stands works effectively. There is no need to amend disclosure principles and procedures. The level and scope of disclosure under the proposed legislation is potentially significantly less than currently available. This cannot be conducive to the interests of justice.” 
Clause 28 provides for full disclosure by the prosecutor to the defendant of certain standard information. But this is available only after the defendant has pleaded not guilty or has elected trial by jury or if the information has been laid indictably. This means that lawyers cannot effectively advise their clients on how to plead until this information has been obtained and therefore clients will all enter “not guilty” pleas on all charges at the initial appearance just so full disclosure can be obtained. This will logjam the courts and is not at all conducive to the initial principle of speedy justice and maximising efficiency. 
We have heard on several occasions of the backlogs that already exist in our jury court system. For example in the Auckland District Court the median waiting time for District Court jury trials has ballooned from 251 median waiting days in 2004 to 321. By comparison Greymouth has gone from 199 waiting days to 343 days. Although efficiency and speedy justice are certainly the aims of this bill it is certainly doubtful whether this overkill of disclosure will meet them. 
Clause 28 essentially codifies the disclosure requirements. It is significantly less than the disclosure currently provided. Copies of exhibits are currently provided. Now lists only of those exhibits are noted not copies. 
The submission from the Institute of Environmental Science and Research was particularly interesting bearing in mind that it deals with forensic services. It stated that it had “major concerns over the potential implications of the time frames”. 
House resumed. 
The Chairperson reported the Student Loan Scheme Amendment Bill (No 2) without amendment and progress on the Criminal Procedure Bill. 
Report adopted.