Graham Kennedy: Criminal Procedure (Reform and Modernisation) Bill — First Reading 
Graham Kennedy: Criminal Procedure (Reform and Modernisation) Bill — First Reading 
[Volume:669;Page:15760] 
Dr KENNEDY GRAHAM (Green) 
: 
 I have the light-hearted privilege of serving on the Justice and Electoral Committee and I just cannot wait to look at the Criminal Procedure (Reform and Modernisation) Bill in detail! The stated purpose of the bill is to simplify criminal procedure in New Zealand. It is described as least by the Minister of Justice as comprising the most comprehensive overhaul of the New Zealand criminal justice system in half a century. 
Specifically the bill seeks to achieve five goals. We are told they are to reduce unnecessary delay and inefficiency of court processes; to avoid unnecessary stress to victims and others involved in criminal process; to eliminate unnecessary complexity in the legislation governing criminal procedure; to reduce shortcomings arising from piecemeal amendments; and to facilitate the use of new technology in the courts. Simplifying those criminal procedures the Minister says will result in 43000 fewer court events each year freeing up to 16000 court sitting hours. It will save up to $24 million over 5 years averaging $5 million per annum. In short the legislation will address excessive delay excessive complexity excessive cost and outdated legislation—so we are told. At face value the Green Party is disposed to support the bill’s overall objective and five stated goals. Who would not to the extent that the problems are valid? 
The next question has to be whether there is any downside to achieving those goals and if so whether that downside prohibits such support being acceptable. Let us analyse the bill which runs to 526 pages and which our colleague Mr Bridges has not read. 
I will take this opportunity to commend the Minister for his energy and his commitment to criminal law reform. It has taken 2 years more or less of his time and I know that he is sincere in his efforts. But such commendation does not persuade us in itself necessarily to support the product we have before us. The Green Party will need to be satisfied that the achievements of the bill outweigh any costs it may contain—costs in terms of civil and political rights that might be forfeited. 
The bill seeks to implement seven innovations. We simply have not had sufficient time to address them all thoroughly and on that I will make a point. I respectfully suggest that it is not good enough on the part of the Government to submit a bill of 526 pages and expect it to be dealt with—given due justice—the following week. It was introduced on 15 November. If we add to those 526 pages the 20 pages of fact sheets the 34 pages of the Attorney-General’s report and the 33 pages of the regulatory impact statement we have 613 complex pages to get through in 6 working days. That is no way to run a democracy even on a bill’s first reading. It is enough to present for the moment an identification of our principal concerns and to indicate that we look forward to exploring them in the select committee. 
First there is the election of a jury trial. This concerns the first set of proposals outlined in the bill namely the categorisation of offences. The stated aim is to categorise criminal offences in a more simplified way. There are to be four categories of offences. First those not punishable by prison can be tried by a District Court judge community magistrate or a justice of the peace. Second those with prison sentences up to 3 years would be tried by a District Court judge—one of the controversial issues. Third for those with prison sentences over 3 years the defendant can elect a jury trial. Finally some in that third category will automatically be tried in the High Court by a jury. Those are cases of high public or symbolic importance such as murder or where the fairness or impartiality of one judge might be in question such as judicial bribery. 
The difference there is that rather than 3 years for the second category of offence the current law stipulates 3 months. But clauses 6 and 9 of the bill as drafted and its associated clauses will result in this being extended to 3 years. We recognise that as Sir Geoffrey Palmer said when he proposed the shorter term of 3 months there is nothing sacrosanct about 3 months. Canada has 5 years for this category of offences and in some Australian states it varies from 2 years to 5 years as well. None the less we query whether the longer period will result in any efficiencies in the administration of justice as seems to be claimed and we query whether there is any other reason for extending the time period. I put it to the Minister that some people—perhaps all people including the Minister himself—might feel more vulnerable if a sole judge were granted the power of prison sentence for up to 3 years rather than 3 months. Let us have statistics for the select committee on the number of people who have been sentenced to prison terms ranging between 3 months and 3 years then we can analyse the situation in the select committee. 
The second concern is about the right to be present. What we have with the second concern is the right of a defendant to be present at a criminal trial. As currently drafted the bill violates the New Zealand Bill of Rights Act section 25 namely the right to be present at a trial and to present a defence. Clause 128(2)(b) of the bill states: “if the court is not satisfied that the defendant has a reasonable excuse for his or her non-attendance and the prosecutor is ready to proceed the court must proceed with the hearing in the absence of the defendant:” as noted by at least one colleague Charles Chauvel. This remains a concern for us. What might be a reasonable excuse in the view of a defendant might not be so in the view of a judge. This is a clear derogation of an existing right. It is one thing for a defendant to waive one’s right to be present; it is quite another for a judge to pronounce that the defendant lacked a reasonable excuse. Whether the issue can be resolved in the select committee remains to be seen but let us hope so. 
The bill raises other issues as well. I invite the Minister or any of his National colleagues who are yet to speak in this first reading to address the following: the onus of proof issue. The question of the reverse onus of proof worries many practitioners in the legal profession—that is to say the plans to shift the burden of proof to defendants in specific fishery and civil aviation offences. Defence lawyer Marie Dyhrberg for example has said that the provision was a shift away from the principle of an accused’s right to silence and was a complete turnabout on the burden of proof. She says that at the moment we have the right to silence and the presumption of innocence and it is on the Crown to prove its case beyond reasonable doubt. What this provision will do in her view is to change the onus of proof. It means that the defendant will have to identify a defence before a trial. 
The fourth issue is jury numbers. There is the question of the proposed reduction of jury numbers. Barrister Peter Williams QC said the proposed reduction in jury cases was a whittling down of the justice process and that will lead to the deterioration of the quality of justice in this country. As Mr Williams has noted the jury system is at the heart of New Zealand’s democratic justice system and he says it is a shame to cheapen it just to save money. 
By way of general comment on the bill I note the comments of Christchurch lawyer Nigel Hampton QC. Mr Hampton has said he does not think the proposed changes will solve any problems. The bill’s aim he observed is to simplify the justice process but with 526 pages it is not a simple thing at all. He said the number of pre-trial conferences and out-of-court discussions have been increasing over the past 20 years. New Zealand’s justice system was “clumsy and awkward”. He supports having just one court for all crime cases with specialised judges which would be far more efficient. I advance this critique not to be oppositional for its own sake but because in light of our concerns and not least in light of these comments by respected members of the legal fraternity there are serious issues that need to be addressed before the bill passes the threshold of acceptability. At the moment in its current form it does not appear to do so. 
I challenge Government members to explicitly address the concerns stated here by the Green Party and clearly shared by leading legal figures before this debate concludes today. Because of those concerns we shall oppose the bill in the first reading. We look forward to seeing whether those problems can be resolved to our satisfaction in the select committee.