Chauvel Charles: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
Chauvel Charles: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
[Volume:676;Page:21584] 
CHARLES CHAUVEL (Labour) 
: 
 The Committee stage debate will include debate on the Supplementary Order Papers that the Minister has just referred to. I will talk about some of the changes that are being made in the Minister of Justice’s Supplementary Order Paper 281 and I indicate that the Opposition will support those changes because they are the result of an agreed and negotiated process. 
I place on record my thanks to those parties in the House that have worked with the Labour Party to bring about these amendments—the ACT Party and the Maori Party in particular—and to the Minister for agreeing to the amendments. I also acknowledge the work of the Green Party. Those members were quite willing to be involved in the discussion in order to try to get to the position that we have arrived at today. It was always a pleasure to work with Kennedy Graham on the issue. I am somewhat sad that that wider discussion did not occur but that might be a matter that the Minister decides to touch on at some point this afternoon as that was effectively his decision. 
In terms of the main objections that were made by the Labour Party in our minority report concerning the original draft of the bill I think these are now well known. We did not like the idea of raising the jury trial threshold from the current level of 3 months to the level of 3 years as was originally proposed. In respect of that matter we have a proposal in the Minister’s Supplementary Order Paper to continue to raise the jury trial threshold but not to the level that was originally proposed. The new level proposed is 2 years. It is a difference of 1 year only as opposed to the difference between 3 months and 3 years. I think if members look objectively at this question they will see that it is a much better system. It has to be said that the evidence given at the select committee and the analysis delivered in favour of a 3-month threshold really did not stack up in the view of many members including me. In order to make the sort of fundamental change that would have been contemplated under that measure I think really it was incumbent on the Government to make a better case than it did. 
Why 2 years as opposed to 3 years? I know that this is a matter that the Green Party does not agree with and will want to take issue with and take some calls on. I ought to admit first off that there is not a lot of science to it. The problem we have here is the lack of analysis that I referred to just now. We did not get in my view the sort of careful consideration of what the new jury trial threshold should be. 
As I have said before when this House deals with the New Zealand Bill of Rights Act as we are and seeks to amend it in a way that derogates from rights as opposed to augmenting rights greater care ought to be taken. None the less for the sake of getting agreement in order to preserve such fundamental liberties as the right to silence we were willing to agree to the 2-year threshold and there is some logic to it. If members care to look at the Crimes Act they will see that there is something of a delineation in the regime concerning offences. More serious offences tend to be tried at above the 2-year imprisonment level and less serious offences obviously fall below that line. I think the example I gave in the second reading speech was of male assaults female or an assault by an adult on a child. It will still be possible for that level of serious offending to be the subject of a jury trial if the defendant insists on it. So there will still be a safeguard for relatively serious offending at that 2-year level. 
Could we have chosen another level? Could we have engaged in a less arbitrary process? Would that have been more desirable? Absolutely. But as I say in order to preserve and maintain a position where a better solution than simply the 3-month threshold was achieved this is where we find ourselves and I do urge members to look carefully at the position as it is now proposed. 
The other major problem with the bill as it was originally proposed is that it made major incursions into the right of the defendant of an accused person to say to the Government: “If you say I am guilty of an offence then you must prove all the elements of that offence. I as the person you have accused am not obliged to help you prove me guilty.” That is a very important principle. I need not labour the point. 
Government members have in the past referred to the provisions in the bill as being simply an innocuous way of bringing a bit more order and hygiene to the criminal justice system by requiring the defence to disclose the broad outline of its case to the prosecution. Those members have said that it was not a problem and that it was just a way of trying to speed up the system. Well that is nonsense and I am glad that the Minister has agreed that these incursions on the right to silence should go. The House of Lords back in the 1930s when the State was much smaller and much less powerful set out a ringing defence of the requirement of the Crown to always do its job to prove all the elements of an offence. The State is much more powerful and has many more resources available to it now. The citizen needs more protection than ever and by agreeing to retain the right to silence this Parliament has done what it should do in this case. I am pleased to say that we are supportive of the way in which the amendment is drafted. 
There are a number of other matters that are dealt with in our minority report that the Minister has agreed to action but there are also some further matters that I think should be dealt with in this legislation in order to try to speed up the criminal justice system without compromising the fundamental rights of New Zealanders. I have proposed these measures in Supplementary Order Paper 286 which is on the Table. I will speak to the amendments that are set out in that Supplementary Order Paper. 
The first amendment relates to inserting a new clause 25A. This would apply only in cases where a person is arrested under what we are now going to call a category 1 or a category 2 offence. This used to be summary offending or indictable offences that were able to be dealt with summarily—so they are the more minor types of offences—in the situation where the police cannot immediately bring the accused person before a court. So a person is arrested for a relatively minor offence and cannot come before the court in a speedy fashion. The provision that I am proposing will allow the arresting officer to release the defendant under this section and to serve the defendant with a summons that would require him or her to come to the court within 2 months of the offence and the clause sets out some provisions there. It is really designed to try to speed up the system as I said without prejudicing the accused person or the person arrested. A similar procedure is set out in the proposed clause 26 which relates to what should happen following an evidential breath test. 
Then in clause 35 I have set out a provision that I understand codifies existing practice but it is not a practice that is written down anywhere. I think it would be useful if the courts were to put this practice into effect rather than simply having it as something that is observed as good hygiene. There is a practice known as disclosure. The Crown has to give disclosure against the defendant. That is the point at which the Crown sets out its case. The Crown says what evidence it has and what the defendant must respond to during his or her defence. Supplementary Order Paper 286 proposes that the defendant should have 21 days to consider the disclosure before having to plead. Before anybody thinks this is simply a pro-defendant move it is actually designed to try to speed up the system. At the moment if one is required to respond immediately to what one gets from the Crown of course what one does is enter a tactical plea of not guilty because it buys one time to respond. If we put in a 21-day limit then we will actually avoid a whole lot of tactical not guilty pleas and we will achieve the Minister’s end of trying to speed up the system without doing anybody a disservice. 
In my amendments to clauses 58 to 63 I have tried to set out a statutory basis for a very good system that operates in our courts at the moment: the sentence indication system. Again it just operates informally off the back of the general powers of the court to do justice. This is a system whereby we can avoid trials going forward by allowing a judge to say: “If this went to trial on the basis of having read the file before me you would probably get this sentence.” The defendant can think: “Well maybe I should just plead guilty to this charge on the basis of that sentencing indication avoid a trial and get a discount for an early guilty plea.” effectively. There is no statutory basis for that at the moment. It is a very sensible system. I am trying to put it into the bill so that we can have that in the legislation going forward. 
My amendment to clause 105 will modernise a silly piece of the law that says one cannot address the judge in the District Court on the evidence at certain times. There is no reason for this archaic practice to exist any more; we should do away with it. Again we might speed up trials. 
Clause 128 will further confine the circumstances in which trial and sentencing can continue in the absence of the defendant. The Minister has agreed to narrow that quite considerably in response to a request from me and others. I am pleased that that has happened but I would narrow it further to say that the court may not proceed in a defendant’s absence where a reasonable excuse for that absence exists. A good simple test known to the law at the moment will not lead to a whole lot of test litigation and we can proceed on that basis. 
There are two final changes. My proposed new clause 176A will prevent the prosecution from offering new evidence or from correcting deficiencies where it could have done so earlier but simply failed to do so through its own oversight. Finally my amendments to clause 361(1) and (2) will restrict the circumstances in which the court can give a costs order against a defendant or a defendant’s counsel to situations where a failure on behalf of one of those two individuals is exceptional and intentional and is done without reasonable excuse. I have not lobbied the Committee for these amendments or gone around asking for support. I hope the Committee will consider the amendments with an open mind. They would I think lead to a better system. Along with the Minister’s amendments which we have agreed to I think we would have a better bill. 
It is not a perfect bill. There is much more work to do in making our criminal law better quicker fairer and more responsive. We could start with the drivers of crime and address them in a multiparty fashion and we could then look at updating the Crimes Act 1961 and the Summary Proceedings Act 1957. Many would say and many have said that those would have been better places to start than diving right into the procedure and the evidential rules which is what this bill does. None the less that is the choice the Government has made. We on this side of the House have done our best to cooperate to offer constructive criticism and to put forward amendments—whether or not they were on time—that try to make the bill better so that New Zealanders will have a more efficient criminal trial system. 
I hope we will have intelligent debate in this slightly shorter Committee stage than one would normally expect on a 600-page bill and I am pleased that there has been such high a level of discussion amongst the parties and that we are talking very much about the detail of amendments. I think that is where we should be in the Committee stage. I would much rather that this discussion had occurred in the select committee but we are not in that situation. I commend the amendments I have mentioned.