Parker David: Courts (Remote Participation) Bill — In Committee 
Parker David: Courts (Remote Participation) Bill — In Committee 
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Hon DAVID PARKER (Labour) 
: 
 Firstly I am a wee bit disappointed that this bill has been brought before the Committee of the whole House today. I think that this is one of those bills that abrogates a civil liberty that we all currently enjoy so it would have been better for the Government to bring something else up on the Order Paper. This bill had its second reading just yesterday and I think it would have been a good idea for the Government to take a breath on this and to have a think about the issues that the Opposition has been raising. 
I say to Mr Williamson the Minister in the chair that this is a serious issue. He and I and everyone else in New Zealand currently have the right to attend the trial if we are accused of a crime. This bill makes that right conditional in that a judge can exercise discretion to conduct a substantive hearing without the accused being present. Mr Bridges said yesterday that he thought the Opposition was over-egging it and made reference to some cases where he said that this already happens. I thank Mr Bridges for his efforts. I read the reference to the cases that he forwarded which came from  
Adams on Criminal Law 
. The cases that he referred to were ones where the accused was deliberately absenting himself or herself from the trial which is quite different. What is being proposed here is where the accused wants to attend the trial the judge will still have the discretion to disallow that appearance. There is no good public policy reason for that. 
I ask the Minister of Justice as I asked the Minister yesterday to give us an example of where there is a problem that needs to be cured. This is curing an illusory problem. There is no problem with the current system. All parties in this House agree that using audiovisual links for bail applications or adjournments can be appropriate in some cases where the defendant or the accused does not agree. But where the Opposition parties including the Greens and Labour disagree is in respect of a substantive hearing. 
I want the Minister to say why he thinks it is justified that an accused will lose the automatic right to face his or her accuser. I ask members to think of how that is relevant. If I am the accused and the main witness for the prosecution has to stare at me contemplating perjury with the consequence of my imprisonment it might make the prosecution witness a bit more edgy if I the accused am standing there in front of him or her. That edginess would reflect in the weight or the truthfulness that the judge or the jury would find in respect of that evidence. The right of the accused to have that effect on witnesses ought not to be taken away from the accused in any situation. 
Similarly other things can go wrong in a court which the accused has a right to see. Who on the jury is falling asleep? Did the judge fall asleep? Is there a cosy relationship between the lawyer who is acting for the accused and the prosecution? Is that relationship so cosy that the accused does not feel that his or her interests are being properly represented? What about the case of the accused who wants to personally conduct his or her own case? What about the case where the accused halfway through a trial might want to dump his or her lawyer and personally represent himself or herself in the case? What about the case where someone sitting in the gallery starts to wave a sign around that is prejudicial to the interests of the accused? The accused will not be there to see it. There will be one camera and the accused will never know it has happened. What about the accused who is sitting in a prison somewhere on the end of an audiovisual link who has to put up with interference from prison guards? That will happen sometimes too at least possibly. 
All of these things are theoretical possibilities that show that an injustice can come as a consequence of us abrogating the unconditional right that people currently have to attend their own trial. That right is unconditional and at present they have a right to be there unless they abuse the privilege. If they abuse the privilege and they start interfering in the court process then of course the judge already has the right to control his or her court. If someone acts in contempt that person can be stood down sent to the cells locked up or imprisoned. 
That is the situation where the defendant or the accused is there and abusing the process. That is not what we are talking about here. We are talking about giving discretion to the judge to find an accused in a trial of a substantive criminal matter who could be facing a very long term of imprisonment not to have the right to be present at his or her own trial. That is what the Law Society objects to that is what the Human Rights Commission objects to and that is what the Labour Party objects to. 
I hope that Mr Garrett from ACT will be reflecting upon this because to face one’s accuser is a basic civil liberty. This can be so easily fixed by agreeing to Supplementary Order Paper 149 in my name and there is a similar Supplementary Order Paper from Kennedy Graham. It states that this discretion to have a trial in the absence of the accused should not ever be used without the consent of the accused—if the accused consents that is fine—in a substantive criminal matter. 
I am even a bit nervous about that being able to be done in appeals. I cannot fix that in this legislation. But certainly on a substantive matter I cannot see the justification. This is a civil liberty that has been in existence for centuries—the right of an accused to face his or her accuser and the right for a trial to take place in their presence. 
There was no evidence at the Justice and Electoral Committee of there being a problem that needed to be fixed. With respect to the officials this is a mistake that has come out of the Ministry of Justice which has confused the need for administrative efficiency and cost-effectiveness in respect of interlocutory matters call-overs and bail applications and it has allowed that interest to outweigh what I think should be an unconditional right to attend one’s own hearing. 
I am dismayed that the Ministry of Justice found that this did not even breach the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act states that one of our basic freedoms is the right to attend our trial—not the right to appear at a trial via videoconference but the right to attend a trial. Somehow the Attorney-General on advice has found that that does not breach the New Zealand Bill of Rights Act and it did not require a vetting of the New Zealand Bill of Rights Act. I really am astounded by that. 
I ask the Minister in charge of the bill to take a call in response to this issue. I cannot see the justification for this in respect of substantive matters. These are not matters of politics. In fact Labour voted in favour of this bill at its first reading. It was not until we got to the select committee and realised it was going to apply to substantive criminal matters that we saw the problem. I would have hoped that this is an area where one would not erode civil liberties lightly. If the Law Society the Human Rights Commission and the Opposition are saying that this is wrong but in 99 percent of the cases where it will be applied it will be right then let us just leave out the 1 percent of the cases where it might be applied. It is just wrong; it is bad law. I feel that this is a serious incursion into civil liberties. There are better judges and there are poorer judges. There are times when judges come under political pressure and there are times when judges have had prior experiences of the accused and do not like them. There are times when juries misbehave and there are times when counsel misbehave. 
It is the right of the accused to attend his or her trial. If I were the accused I would feel a terrible sense of injustice if I were prevented from attending my own trial. I would not feel that I had been properly able to protect my interests against the State. The State has all the power here. It has all the money. It has the resources of the police the resources of the Crown Law Office and it can pay for as many witnesses as it wants. The State can make trials expensive or it can make them long. It does not need the extra power to deprive the accused of their right unconditionally to attend their trial. I am not talking about defendants who abscond in the middle of a trial. That is OK; they do not want to be there. 
Sitting suspended from 6 p.m. to 7.30 p.m.