Smith Murray: Criminal Procedure Bill — First Reading 
Smith Murray: Criminal Procedure Bill — First Reading 
[Volume:618;Page:14221] 
MURRAY SMITH (United Future) 
: 
 It may come as a surprise to members to learn that the New Zealand legal system is not founded on the pursuit of truth. In other words the New Zealand legal system is not founded on the necessity for our courts to determine as far as they can whether a person actually committed a crime before determining what punishment if any is appropriate; or in a civil dispute everything relevant that happened between the parties before deciding who is in the right. Whether people are surprised by that statement depends on how close an involvement they have had with our courts. The statement will not surprise lawyers judges and most people who have been required to participate in our justice system. Those who earn their living from participation in the courts system are well aware that the discovery of truth is no more than a hopeful by-product of the justice system and not central to it. 
Many New Zealanders who have appeared before courts either as defendants in criminal or civil cases or in seeking to obtain the assistance of the court to enforce their rights have come away frustrated and disillusioned at the inadequacies of the court system solely because they had an expectation that the court would make a decision that was based on the truth. But instead they have found that that decision has been based on half-truths impressions sympathies and above all else a rigid adherence to the semantics of legislative wording. 
On 3 August 1994 TV3 aired a documentary in its  
Inside New Zealand  
series that looked at the criminal jurisdiction of the District Courts. In the course of the programme the then Chief District Court Judge and now Ombudsman Anand Satyanand stated: “It is not my role to discover the truth.” Rather he said that the judge’s role was to consider the evidence that was placed in front of him or her and decide whether the evidence was sufficient to prove the commission of an offence in terms of a strict analysis of the wording of the relevant statute. 
In other words the dispensing of justice in the criminal court system is a technical exercise in which the prosecution is required to prove each ingredient of an offence and the defence counsel role is in essence to show that the prosecution has failed to do so. For that reason no one is ever found innocent—that is found that he or she did not commit a crime. He or she is found not guilty. This is an important difference. “Not guilty” means that whether he or she did it or not guilt has not been proven. 
Accordingly in the very first criminal case that I was involved in as a defence lawyer my client was accused of hunting without a licence. The regional authority that was prosecuting him overlooked presenting evidence to the court that the land on which my client was found with his gun was public land—an essential ingredient of the offence. I moved for the charge to be struck out on the basis that an essential ingredient had not been proven. That was granted and my client was free irrespective of whether he had actually hunted without a licence. 
Accordingly it is quite consistent within our adversarial system for a person to be acquitted of a crime even though he actually “did it”. In fact the concept of “did it” suggests that he was guilty of committing a crime and he is not guilty unless the police can prove he “did it”. If they cannot he is “not guilty” and is acquitted—that is freed or released from charge. As I said our system never declares a person innocent. 
 So when we come to this bill we see that the Government is tinkering with a criminal justice system that has much more fundamental problems. In our criminal justice system everybody has the goal of seeing people who commit crimes getting convicted and people who are wrongly accused getting acquitted; also they want the system to run efficiently both in terms of time and cost. This bill seeks to make some adjustments to our flawed system in order to try to improve those things. 
In terms of juries the bill addresses the problems we have of a reluctance of people to serve as jurors and also the problem of the rogue juror—the one in 12 who for whatever reason apparent or hidden will not agree with the other 11. Chiefly in that regard the bill provides for majority verdicts for dispensing with jurors in cases of complexity for increasing the catchment area for jurors for increasing penalties for jurors who do not turn up for allowing jurors to go home at night during trials and for allowing jurors to defer jury service. Those things are mostly non-contentious. The dispensing of jurors is a contentious point but as I said the Government is really just tinkering in that sort of area. 
With regard to deposition hearings the bill provides for a speeding up of the trial process and for a freeing up of court time. Deposition hearings will be conducted on the papers instead of having the current situation whereby oral evidence is presented unless a judge agrees otherwise. Currently depositions serve as a bit of a test run as to the reliability of the Crown evidence and that goes back to the fundamental comment I made that a person is entitled to an acquittal if the police cannot prove he or she “did it”—whether it actually happened or not. 
However defence counsel have at times found that the presentation of oral evidence—in particular the ability to cross-examine intended Crown witnesses—has revealed information that should have been disclosed by the police but was not. For example I have been cited a case where a defence attorney said to the Crown’s witness: “What did you do next?” and he said: “Well I made some notes and gave them to the police.” The question has then been: “What notes?” because the police have not disclosed what was absolutely critical information in terms of notes made at the time. So that has been an area where oral evidence has managed to serve to elicit factual information that should have been disclosed to the police. 
The bill does provide some help for the defence in that regard. However under the bill the police will have to disclose all relevant evidence. At present the police have to disclose only what they are asked for and it is actually a technical and key exercise for defence counsel to make sure that they provide a broad request to the police so that the police actually give them everything relevant to the case. 
However there are still times known where the police have conveniently lost or simply denied the existence of evidence that is later proved to exist. Therefore at least a compulsion on the police to disclose all evidence although that will add to a lot of time and cost on the part of the police will to some extent redress what we are taking away from the defence in the area of oral depositions. 
The area of double jeopardy has been dwelt on already by previous speakers. Certainly in terms of tainted acquittals United Future is happy that if a person corrupts the system he or she should not benefit from having done so; and it is legitimate to look at a situation of retrying the process because of the corruption that has been demonstrated to have occurred. The “subsequent evidence” rule however is problematic and we have some real doubts about that. But we are happy and willing to listen to the submissions that come and we will do that with interest before we make a final decision in that regard. 
I come back to the point that we really need to look at the root causes of our justice system and in particular at the whole adversarial system we have constructed. United Future believes—and I in particular believe—that we need to move more towards an inquisitorial type of system as we have already done in terms of inquiries tribunals and even Family Courts. The Care of Children Bill is a case in point. 
There are three effective things I think we can do in order to move towards that. First we should make establishing the truth a priority of both judges and courts—refocusing the judges and thereby the system on what they ought to be doing. Secondly I think we should strengthen judges’ ability to call for evidence to be presented so that judges can when they see a gap in the evidence take more positive steps towards ensuring that all the evidence that ought to be presented before the court is presented in order that they can get to the truth. 
Thirdly I agree with the ACT party—and I am very pleased to see its members supporting what I have been arguing for a number of years—that we should require defendants to give evidence and allow a negative inference to be taken if they do not do so. I think that would dramatically speed up our process. We would have a lot fewer situations whereby defence attorneys run a case even though their client “did it” just to see whether the police can actually prove it. There would be a lot less of that happening saving considerable time and expense. 
United Future will support the first reading of this bill and enable the select committee to examine the issues contained in it. However until we stop tinkering with the system and take a radical look at its fundamentals we will never get to a stage where we can confidently say that people who commit crimes will invariably be convicted and that those who are wrongly accused will invariably be acquitted.