Borrows Chester: Criminal Procedure Bill — In Committee 
Borrows Chester: Criminal Procedure Bill — In Committee 
[Volume:638;Page:8244] 
CHESTER BORROWS (National—Whanganui) 
: 
 I am pleased that Russell Fairbrother introduced the phrase “the pursuit of truth” in respect of the justice system. It reminds me very much of an often quoted dictum from Judge Andrew Becroft whom I often quote late at night. As a new prosecutor in the Hawera District Court and trying to struggle with the rules of evidence—as a police officer does from time to time—I pleaded to the judge: “If we are pursuing the truth here—”. Judge Becroft told me to sit down and reminded me that we are not pursuing the truth in court. He said: “If we were pursuing the truth we would have the rack back Mr Borrows.” 
In actual fact we have a set of rules of law that a lot of people do not understand. A lot of rules from time to time appear to be unusual and to be running against the pursuit of truth. But they are there for particularly important reasons. I find it really unusual too that my friend over yonder Russell Fairbrother decided to talk about the double jeopardy rules and how they were there long before things like fingerprints. It is interesting in the Kevin Moore case that the reason why Moore concocted evidence was to try to explain why his fingerprints were found in the home of the person he murdered. He got his mate to come along and say they had gone to the house to do a drug deal which explained the presence of Moore’s fingerprints. 
Another interesting or amazing situation is that this Government decided to introduce a law in respect of double jeopardy in spite of the myriad of jailhouse confessions—or supposed confessions—that come after a number of trials have been tossed out because those jailhouse confessions have proved to be unsafe. In fact if we look at our  
R v Moore 
 case we see that none of it had anything to do with changes in technology. It was solely around someone getting up in court and telling lies which is the whole reason why the double jeopardy law was introduced in the first place. 
It is this Government’s proposition that we should institute a double jeopardy law to enable people to be tried for a second time for the same crime. That proposition is on the basis of a one-off incident that occurred in New Plymouth with a Black Power gang member who was convicted on the basis of his mate getting up in court and telling lies. The National Party has decided that it will support the double jeopardy provision only around DNA evidence in the Criminal Procedure Bill and will not support anything else in relation to double jeopardy. I have to accept that changes in technology that now enable us to obtain DNA from material that we could not obtain DNA from 10 years ago are leading to convictions today and overturning injustices that have occurred. 
In Part 1 of this bill the first proposal is that a judge can order a judge-alone trial for complex cases and for cases where there is intimidation of juries or where there is a real threat of intimidation of juries. I can certainly see the logic of that. To take 12 good men and true—to use a sexist quote from times gone by—put them on a jury select them by dubious measures and then subject them for instance to a 5-week complicated fraud case seems to be me to be absolutely ridiculous and completely ripe for a judge-alone matter. 
 When we look at the way that barristers and solicitors have traditionally selected juries we see that if someone does not want to be on a jury the best way not to be selected is to turn up in a suit with a briefcase—whether the person is a male or female. That person will not be selected because he or she will look smart enough to see through whatever the defence counsel will throw up. I can say that having been defence counsel in at least one jury trial in my short career. 
To address what bothers me though I turn the Minister’s eye to new section 378C of the new Crimes Act “Consent of Solicitor-General required in certain circumstances …”. I have a number of questions that I wish to put to the Minister over the course of this Committee stage because this new section appears to do some incredibly interesting things for which there does not appear to be any sort of precedent whatever. New section 378C(1) provides that where a member of the police has good cause to suspect that there has been a tainted acquittal of a previously convicted defendant he or she may seek permission from the Solicitor-General to investigate. New section 378C(2) allows that to happen. If the police provide that evidence to the Solicitor-General the Solicitor-General will give them permission to investigate. Well that is great. 
Then we get to new section 378C(3) and see that for some reason as soon as the police are given the power to investigate they have all sorts of unwarranted powers that do not seem to be replicated anywhere else within the law. New section 378(3)(a) for instance allows for questioning the acquitted person or any other person. So I ask the Minister to advise us as to who in this country can be safe from unreasonable questioning. That paragraph states: “questioning the acquitted person or any other person:”—any other person at all. I assume then because the paragraph does not state anything different from this that the police have the power to detain people for the purpose of questioning. 
New section 378C(3)(b) refers to “searching the acquitted person or any other person:”. That paragraph does not say “with a warrant” or “without warrant”; it just states that the police can search an acquitted person or any other person and it allows a huge wide-ranging power that is not replicated anywhere else in the law. New section 378C(3)(c) provides for the same search without warrant to “any premises or vehicles:”. I do not see where that provision is replicated anywhere else in the law and the provision does not seem to be covered by the Attorney-General’s New Zealand Bill of Rights Act report on this legislation—it does not seem to be covered anywhere. 
I cannot understand then the following paragraph (d) which states that “any thing” can be seized. What the hell is that supposed to mean? If we look for instance at the powers of search under section 202B of the Crimes Act which relates to searching for offensive weapons and substances we see that the specific power states: “Where any constable has reasonable grounds for believing that a person is committing an offence against section 202A(4)(a) he may—(a) stop and search that person and any package or receptacle he has with him that the constable has reasonable grounds for believing contains any knife offensive weapon or disabling substance and may detain that person for as long as is reasonably necessary to conduct that search;” The section does not talk about requiring a warrant to do that and the reason for that is that it is a power of search without warrant. I say to the Minister that if we look back at the bill we see that it does not provide any of the provisions that section 202B of the Crimes Act does; it is just completely open-ended and I wonder where on earth that came from. 
Given that the power under paragraph (b) provides for searching the acquitted person or any other person my next question is how any New Zealander knows that he or she will not be subject to a search pursuant to this legislation without warrant at any time anywhere. In respect of the provision that goes on to offer the same unwarranted powers to search premises or vehicles how do New Zealanders know they will not be searched in their own home or vehicle as they are driving down the street? This does not just apply to the acquitted person; it applies to any person. I want to know how that happened and why that is not covered in the report of the Attorney-General in respect of the powers under the New Zealand Bill of Rights Act. That Act protects for instance our freedom from unreasonable search and seizure. But we know for instance from the case of  
R v Shaheed 
 that even if the search is unlawful it may still be reasonable so that evidence may well be admitted. But there is no reference to that in any of the material that we have here. 
I find it incredible that we should have these circumstances. There seems to me to be a gaping hole that will allow all sorts of activities to go on as soon as the police have the ability to investigate as given to them by the Attorney-General. But the thing seems to be completely fraught with holes that will catch New Zealanders. Somebody may say that the provision is only for crimes that are punishable by 14 years of imprisonment or longer but the whole substance of the New Zealand Bill of Rights Act is that it applies to anybody in this country—the most holy and the most despicable. That is the whole purpose of having such an Act: to protect the most vulnerable in our community. What assurance can the Minister give us then that these provisions will not be used unreasonably against the average Joe Blow who walks the street at any time of the day or night in this country? This appears to be a “storm trooper” provision that would come straight out of Nazi Germany and maybe the member who suggested that we look at our history should look at her own. 
If we look at page 12 of the Law and Order Committee’s report under the heading “Encouraging inadequate investigations” we note that the report stated the following: “We note concerns that the exception may encourage sloppy police work. Most of us consider that the strict guidelines surrounding the provision will insure against any such effect. The requirements that the evidence must be new and that it could not have been given in the first proceedings have particular relevance.” I say to the Minister that it is my contention that what this bill does is to encourage exactly the sort of behaviour that the select committee was warned about. In spite of that warning the Government has gone on to attempt to enact a provision that allows unwarranted search unwarranted questioning and detention for the purpose of questioning and unwarranted search not only of vehicles that may be travelling on the street or may be parked at a premises but also of any premises whatever anywhere and at any time—and no limitations are placed on that. 
The police also have the power to seize any thing—funnily enough “thing” is not defined within the provisions of the bill. I find it incredible that the select committee ever envisaged that that provision would come before this Committee and I find it equally incredible that it was allowed to come before the Committee without those matters being addressed. I note that the provisions of the Crimes Act in relation to unwarranted search and seizure under section 202B and also under the Misuse of Drugs Act require the police executing their powers in respect of these matters to provide identification of themselves as police officers and to quote the provisions they are exercising at the time—the Act and the section. None of that is provided for within this bill either. 
The bill appears to me to run completely foul of the rule of law in this country and I really wonder where the advisers came from in allowing that to proceed. I note from scanning the bill that there is no provision that requires a reference to or application for a search warrant under section 198 of the Summary Proceedings Act and no affidavit. But as soon as the police have the authority of the Solicitor-General to continue with the investigation—and no doubt that would require some level of evidence—they can go about these unwarranted activities. But if we look at the case that this is introduced on which is  
R v Moore 
 we see given the genesis of where that case came from that the only evidence the police could have given in that case was the sworn affidavit of the person who had given false evidence in court and who then went over and became a police witness. 
My last point is that I fail to understand how this legislation which transgresses so many fundamental rules of law in this country went before the Law and Order Committee. Why did the bill not go before the Justice and Electoral Committee where there would be some scrutiny by the members of that committee? I think it is unfair that legislation that contravenes so fundamentally things that are so dear to us should be allowed to transgress in this way.