Barker Rick: Criminal Procedure Bill — In Committee 
Barker Rick: Criminal Procedure Bill — In Committee 
[Volume:647;Page:16614] 
Hon RICK BARKER (Associate Minister of Justice) 
: 
 I rise to make a contribution on Part 5 and firstly to say that sometimes a lack of balance is shown in debates in this Chamber. In this debate it has been claimed that if this part of the bill is passed then New Zealand will be somehow comparable with Zimbabwe and that one would need to be on the right end of an M16 rifle. I say that any sane New Zealander who is listening to this debate today will know that that view is extreme and irrelevant and that it devalues the currency of the contribution. We have heard also that out of the window today will go the rule of law and the principle of being deemed innocent until proven guilty. I assure the public that that is simply not the case whatsoever. Such extreme comments do not reflect particularly well on this very important debate. We should debate the issue as we have done. 
Richard Worth elegantly put his finger on the central issue. The central issue is about disclosure and speaking as someone who is not as deeply immersed in the law as some other members are I was somewhat surprised to learn that the rules on pre-trial disclosure vary across the country. They are unclear and not as specific as they should be. I was amazed at that. I was interested also to learn about and to get clear in my head the purpose of depositions hearings. The purpose is to give to the defence all of the available evidence that will be brought forward by the prosecution so that people can hear what will be put before the court for it to consider and have the opportunity to prepare themselves for the trial. It is so there will not be trial by ambush. I think that every New Zealander would reject trial by ambush. People are entitled to know what evidence will be presented at a trial. The central theme of depositions is that if all the evidence that has been presented were to be believed would a reasonable jury contemplate a conviction? The purpose of depositions was not about testing the veracity of the evidence; it was not supposed to be about testing whether the person was believable. The purpose of depositions was simply about disclosure. 
But over the years we have seen a change whereby in fact depositions hearings became a pre-trial. The witnesses were being tested as to the veracity of their evidence; it was tested in various ways. One has only to read the book by Louise Nicholas about her experiences in depositions hearings to come to the conclusion that some defence teams were using depositions hearings as a way of intimidating witnesses as best they could in order to make sure they did not turn up. 
Dail Jones 
: Aw! 
Hon RICK BARKER 
: Mr Jones groans but I say that central to our justice system will always be the idea of being deemed innocent until proven guilty and that everybody is entitled to a fair trial. There will be a fair trial. What is being changed here is the structure. It is being changed so that there are much more rigorous proposals for disclosure and the rules will be tightened up so that the defence can be assured that it has all the information. 
Some people are saying that if we do not have depositions hearings then somehow the information will not get to the defence. That is not true; the defence will have all of the information. The default in that logic is saying that if we do not have depositions hearings then those people who are contemplating their future at trial will not make the decisions that they did at those hearings and that somehow they will automatically go to trial. I say that is not necessarily true. Kate Wilkinson has put forward a figure of 144 people who have pleaded guilty prior to going to trial. It is very conceivable that an individual when presented with all of the weight of evidence by the prosecution will make exactly the same decision regardless of whether he or she gets the information in writing or orally. The information will be the same; there will be no difference in it. Those individuals who are likely to decide that the weight of evidence against them is so overwhelming that they will plead guilty now and not go through the process of the trial are likely to make exactly the same decision. Some members have argued that people who are given the information in writing as opposed to orally will make a different decision. But those members have not put up any evidence or made a case in order to argue for that view. 
We have also had the argument put that this bill will not improve the speed of decision making in trials. I want to put forward several things about that. Firstly Kate Wilkinson has identified from questions that I supplied the answers to that about 8000 hours of court time is taken up with depositions hearings—maybe the figure is closer to 6000 hours. Whatever the figure is the majority of that time will not be required for depositions hearings. Some time will still be required because from time to time someone will be required to present his or her evidence orally as the Supplementary Order Paper provides for. If thousands of extra hours of court time are to become available it is not a leap in logic to say that thousands of hours of extra court time that are not available today will then be available for court sittings. I expect that the availability of thousands of extra hours of court time will lead to cases coming to trial more quickly. I believe that this will speed up the process. There is no doubt that it will put more pressure on the prosecution to make sure that its evidence in a case is put together well or else it will suffer the consequences of failure to do so. 
The other part of this issue which I think is very important is that it has been made public by numbers of people that a pre-trial depositions hearing is a traumatic experience. People do not mind going to trial for a trial but to have to go through it twice is incredibly damaging to the family. It traumatises people again. We have only to look at the television coverage over the last 12 or 18 months to see case after case of that happening. To those people who want to keep the pre-trial oral depositions hearing I put this challenge. If it is so worthwhile they should put forward a case that justifies retraumatising the victims of crime twice—once completely unnecessarily. That is it. If there is any justification for doing that let us hear the evidence. I have not heard a particularly compelling argument for it. 
Putting that to one side we then come to the other key part. There are various opinions about this change but time will be the test of it. I come back to the point that has been made about the review and I give the Committee an assurance that the review will happen in 2 years’ time. It will be led by the Solicitor-General and it will be thorough. At the start of this process there will be a requirement for those who are to carry out the work to set out the information that needs to be collected and captured so that we can make a serious analysis of the situation. In 2 years’ time—or 6 months after that by the time the report comes forward—we will have a very clear picture of the situation. My prediction is that cases will come to trial more quickly that the processes will be improved and that a large number of people will still plead guilty prior to going to trial because the weight of evidence against them will be such that they will see the inevitability of the outcome. 
I personally do not think there will be a great deal of change but I do predict that it will be much better for the victims of crime. People in this Chamber have often talked about the victims of crime and here is one occasion when this House can do something to improve the circumstances of all victims as they have to pass through the criminal justice system. This is one area where I think we will make a significant difference and a very big positive move for the victims of crime. I think this Committee should welcome that with open arms. 
Having said that there is an acknowledgment by me and by others in the Chamber that there are serious reservations about this proposal. I do not treat them lightly. I accept them as serious and genuinely held views. We will come to a point in 2 years’ time where we will then assess those predictions against the reality of the outcome. If we find that the circumstances that the naysayers have put forward have come true then the House has its own power to make changes. I am absolutely confident it will do so if the weight of evidence supports doing that. If on the other hand the predictions made by those who promote the bill and the changes are true then I look forward to people such as Mr Dail Jones saying they did not think so at the time but they now accept that it was the right thing to do and was certainly the right thing to do for the sake of victims. Thank you.