Tanczos Nandor: Criminal Procedure Bill — First Reading 
Tanczos Nandor: Criminal Procedure Bill — First Reading 
[Volume:618;Page:14217] 
NANDOR TANCZOS (Green) 
: 
 Last night the Green Party split its vote on the Parole (Extended Supervision) and Sentencing Amendment Bill because while we had strong concerns over the New Zealand Bill of Rights Act implications of that bill most of us felt that the infringement of the New Zealand Bill of Rights Act was justifiable. There was clear evidence of an immediate problem that was quantifiable and there was compelling reason for change in terms of the significance of the problem that the bill was trying to address. I mention that bill only as a comparison with the current bill that we are looking at because in this case I do not think we can see clear evidence of a current problem that needs to be addressed in urgency. Nor do I think we see evidence of the kind of seriousness of the problem that can be compared at all so because of that the Green Party will not be supporting this bill through the first reading. That does not mean that we may not be able to support it at a later stage if significant amendments can be made to it but certainly we do not feel able to support it at this point because we do not think the evidence is there. 
This is an omnibus bill. Of course there are a number of provisions— 
Dail Jones 
: What is it that you are opposing? 
NANDOR TANCZOS 
: The bill. 
Dail Jones 
: Entirely? 
NANDOR TANCZOS 
: That is what my speech is about to outline. The member is quite right—this is an omnibus bill; there are a number of provisions in it and many of them are actually very good. We support many of these provisions and it is unfortunate that the Government seems to have an increasing tendency to put in omnibus bills which means there are so many different provisions in there that we are constantly having to weigh up: “Is it so bad that we cannot support the good stuff?”. That is not a proper way to conduct the business of this House in our opinion. 
The first thing I will speak about in the specifics of the bill is the double jeopardy aspect because it is a serious issue. Unlike the Parole (Extended Supervision) and Sentencing Amendment Bill that we discussed last night which some claimed comprised double jeopardy but could be seen not so much as double jeopardy but more in the nature of a double punishment what we are seeing with this bill is quite clearly actual double jeopardy—that is people who have been acquitted in a court of an offence are being retried for the same offence. 
Now there is a case to be made in some way and we have some sympathy for some of the things the bill is trying to achieve in this regard. The bill creates two exceptions to the double jeopardy rule. The first one is where someone was acquitted because of committing an administration of justice offence such as perjury or intimidating a witness. And we do have some sympathy for that point of view if it is clear that someone was acquitted because that person threatened a juror for example and that led to a false verdict. That is a problem and does need to be addressed. We looked at whether there were other ways of addressing that problem: should we strengthen the perjury provisions for example? 
Of course it is not possible to come at all of the cases in that way because first of all many of the offences committed to get the acquittal would not have been committed by the person on trial. These offences would have been committed by friends or associates and prosecuting someone for perjury does not necessarily address the problem of the wrongful acquittal The other thing of course is that if someone is acquitted of a murder charge to use the perjury laws to get at that person the offender will have to be sentenced to the kind of sentence that he or she would have received had he or she been found guilty of murder. What we are then doing is effectively sentencing such offenders for something that they have not been proven guilty of and that would be even more improper. So we cannot get at it that way and we do have some sympathy with that part of the double jeopardy rule. 
We have more concerns with the second part where reference is made to compelling new evidence becoming available. We have to accept that technology moves on. It may be that in 5 years’ time some amazing new technology is developed that was not available at the time of the case and it is able to prove that someone was guilty of the offence but this provision is not limited to new technology. This provision is actually quite broad in the sense that it contains few safeguards. It just talks about “fresh and compelling evidence”. Well what does that actually mean? I think Mr Goff has tried to take some of the concerns seriously and has tried to put some safeguards around it. There is going to be only one trial the Solicitor-General must consent to police reinvestigation and then they seek leave to the Court of Appeal to reopen the case. 
 The Court of Appeal must then decide that there is compelling new evidence and Mr Goff says that the evidence must be unable to have been discovered with the exercise of due diligence. So I think that is an attempt to put in safeguards; nevertheless the Green Party does not believe that they are adequate to safeguard against the problem that the bill provides a strong incentive for the manufacture of evidence if someone has been committed of an offence. It is not a theoretical thing. We cannot say: “Oh the New Zealand Police never do this.” Most officers never do that but we have examples in the history of this country where evidence has been manufactured and we have to take that seriously. In the opinion of the Greens we would be wrong as a Parliament to create incentives for the manufacture of evidence. 
The other thing is that there is no evidence that this is a compelling problem. Where is the evidence that people are being acquitted on the basis of these things and that we have such a problem with it that a law needs to be passed that contravenes the longstanding principle against double jeopardy? In our opinion the evidence is just not there. 
The other thing I would like to talk about that was also very strongly opposed in our caucus is some of the provisions around jury trials. Some of the provisions are actually very good. Some of them simply relate to making juries more effective. For example we strongly support things like increasing jury district boundaries increased penalties for failing to answer a jury summons and provisions to defer service for up to 12 months. I have been called up for jury service twice in my life once during my university exams and once a couple of days after I had been elected as a member of Parliament. I was quite disappointed because I would have enjoyed doing the jury service. 
Hon Ken Shirley 
: Not eligible. 
NANDOR TANCZOS 
: Exactly not eligible. I saw it as a responsibility as a citizen of Aotearoa to do that. It would have been extremely interesting and informative to take part. When I was doing my exams I would have liked to defer my jury service so that when my exams were finished I could have done it at a later time but that was not possible. So I think it is good that people can defer service. It is an offence to prejudice an employee by reason of that person’s absence on jury service. The other thing we think is extremely good is allowing the prosecution and defence expert evidence to be heard in sequence where that would better assist jurors to understand the case so that jurors do not have to follow an extremely complex argument through to the completion of all the evidence then hear the other side with the serious possibility of becoming confused about what point was what and so on. 
So there are a number of good things in the bill but we strongly oppose first of all the move to majority verdicts. Notwithstanding the lengthy list of mostly American states that Mr Richard Worth read to the House we think that majority verdicts will lead to quicker but not necessarily better justice. Now when one juror has a strong reservation about a guilty verdict the jury has to listen to that person work through the issues and either convince that person of the correctness of a guilty verdict or it may well be and it does happen—and there is experience of this in our caucus—that a single juror says that it is not right that there is something wrong and manages to bring around a majority of the jurors to conclude that a not guilty verdict would be appropriate. 
There is no incentive to do that with majority verdicts. The majority of the jury will just go: “Oh well we will wait 4 hours then it is all over. We don’t have to listen to you.” The Greens think that that is a bad move and we do not think we should go that way at all. 
The other thing we are extremely concerned about is the ability to have trial by judge alone in long and complex cases and where there is evidence of jury intimidation. Jury intimidation is when there is evidence that there is has been or may be jury intimidation. That is extremely broad. We think that this issue is a real problem and that this is not the way to deal with it. We think the changes to depositions are something we should support. So overall it is a mix of things. It is unfortunate that we have to oppose the good things because of the things we do not support but we will not be supporting this bill through its first reading.