Wilkinson Kate: Criminal Procedure Bill — In Committee 
Wilkinson Kate: Criminal Procedure Bill — In Committee 
[Volume:638;Page:8241] 
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.