Little Andrew: Bail Amendment Bill — Third ReadingText is incorporated into the Bound VolumeLittle Andrew: Bail Amendment Bill — Third Reading[Sitting date: 27 August 2013. Volume:693;Page:12885. Text is incorporated into the Bound Volume.]ANDREW LITTLE (Labour): I rise to speak in this third reading of the Bail Amendment Bill. I will just start with some first principles when it comes to criminal justice. There are two things we look to the criminal justice system to do. The first is to convict and to deal effectively with the guilty—those who have committed crimes those who have been found guilty after a consideration of the evidence and a decision made whether by a judge or a jury. The second thing we require of the criminal justice system is to protect the innocent because the truth is that the enforcement authorities can get it wrong and they can get it horribly wrong and catastrophically wrong.Over the years over generations indeed over the centuries rules have been built up in respect of those who face serious allegations of criminal wrongdoing from the State—with all the resources that the State brings to bear upon that process—to ensure that there are rules to consider the evidence and to ensure that those who are innocent those who are not guilty are properly safeguarded and protected. Part of that process is the time between when an alleged offender is charged and when they are tried. As other speakers have already noted—Phil Goff the Minister Judith Collins and indeed the last speaker Jacqui Dean as well—actually we do have delays in our criminal justice system in New Zealand at the moment and we have had those delays for some time now. This is not new. That has made the decision about how to manage an alleged offender in the meantime a very important one. The longer the time between a person being charged and the time they get tried that weighs against incarcerating them because if they are subsequently found not guilty then they themselves have experienced an injustice that we should not take lightly.So the bail decision is a very important decision. But as my colleague Phil Goff has pointed out what we have seen in more recent years is that some who have been released on bail free to move about the community but under conditions have continued to offend on bail. So the balance has had to berestruck to ensure that when judges are considering what to do with alleged offenders particularly those who have aprior track record and especially when that prior track record includes convictions for the same or similar offences judges are now more alert to the risk assessment needed to make a decision on whether bail should be granted. That is a healthy response to growing community concern about that particular issue. This bill I think seeks to strike that balance. I think notwithstanding some ongoing reservations that we have particularly about the treatment of young people by and large this bill gets the balance about right.For serious offences and where there are alleged offenders who have previous convictions for serious offences it is no longer a matter of the police having to demonstrate why bail should be denied and why they should be incarcerated. It is for the defendant in the matter to demonstrate that they do not pose a risk to the community. I think that is an acceptable trade-off to make in our criminal justice system where a track record of convictions clearly elevates the risk that an alleged offender poses and therefore is a matter for the judge to take into account and to say “Well all right. You’ve had these convictions. You’ve offended again. Clearly the risk is heightened so the presumption would be to detain you but you have an opportunity to demonstrate to this court why you should not be detained and why you should be released on bail.” This legislation does not deny bail or at least it does not automatically deny bail to alleged offenders but it does heighten the hurdle if you like for them to jump in order to continue to enjoy their freedom until such time as they are tried on the charge that they face. It heightens the obstacle if you like for those on very serious offences and those on serious drug offences. I have to say in light of events over the last few years that I do not find that objectionable. When considering public safety and community safety particularly the management of offenders and those with a track record that is an acceptable standard to legislate for.It is for the same reason that I think it is going too far to say that just because you have been charged with an offence even if you do not have any prior convictions that should lead to a presumption that you should be detained rather than being granted bail. I think that was the conundrum in the dreadful ChristieMarceau case where the judge—dealing with a young offender who had no previous conviction and was facing a serious charge one of kidnapping—had no information about what subsequently became known about that offender’s mental health and made the decision to release that offender on bail with the tragic consequences that it had for theMarceau family. The reality is that this law would not change that situation in terms of the judge’s discretion and what the judge has to do when dealing with an application for bail.I think that highlights another very important point too and that is that in the end it is the judges sitting in court with the information provided by the police and the defendant who are in the best position to make judgments about the management of the offender or alleged offender as the case may be. There are repeated calls to limit reduce and in some cases eliminate judges’ discretion when it comes to these matters of human frailty and humankind. I just register my strong objection to that. We charge judges with a very difficult task and I do not know of any judge who when dealing with a bail application or a sentencing and the possibility of incarcerating a person does not take great care with that decision. Most of the applications for bail that judges deal with are on minor matters and do not need to be particularly taxing of a judge’s time and intellectual effort but in the very serious cases judges do need to have the means the time and the resources to pay very careful attention to the matters before them. For that matter I think anything more that can be done to assist judges and give them the means the tools and the methods to undertake a proper risk assessment of an offender or an alleged offender appearing before the court is all for the good. That is the sort ofthe thing that we should be encouraging when it comes to the effective administration of our criminal justice system.Notwithstanding the reservations that we have had from the outset because of a pattern that we have seen over many years now in our law of just shifting that balance and while trying to secure public safety through the effective management of the guilty and those who act anti-socially we have to make sure that we do not also in that process capture the innocent and treat them unjustly. That is always the difficult balance that the criminal justice system has to deal with.One of the good things that this bill does is it elevates bail applications in cases of serious drug offences to be considered by judges only and that is as it should be.I am going to conclude by just simply commenting again on one of the matters that appeared in the Minister of Justice’s Supplementary Order Paper 339 which was tabled only yesterday and that is the issue of the management of electronic bail. Although the Minister gave an explanation today that she had not hitherto given even after I requested an explanation from her office yesterday that explanation still does not deal with the mechanics of how the Minister’s discretion on who will be responsible for electronic bail is going to be exercised. It is all very well allowing it to be done by either the police or the Department of Corrections or both of them. But how is a decision going to be made on who is best equipped to do it?The Minister says that the Department of Corrections is best equipped to do it. So why not give the job to that department? It already monitors those who are sentenced to home detention and to sentences that carry electronic monitoring. Why not give the department that job? Why provide in the law for either the police or the Department of Corrections or both? We still have not had an adequate explanation of the way in which that discretion by the Minister might be exercised and the grounds that the Minister might take into account on making that decision. Is it going to be done on a regional basis? Is it going to be done by simply just saying yes both departments can do it and you sort it out amongst yourselves.”? That remains an unsatisfactory element to this bill and no doubt this House will have to monitor very carefully its application and implementation. But notwithstanding that as I have said we will continue to support the bill.