Jones Dail: Criminal Procedure Bill — First Reading 
Jones Dail: Criminal Procedure Bill — First Reading 
[Volume:618;Page:14216] 
DAIL JONES (NZ First) 
: 
 This bill has a number of very important issues from the point of view of criminal procedure. New Zealand First will support it to the select committee but we do have reservations about it. The National Party spokesman for justice set out a number of issues very clearly. He was especially concerned about the second exception relating to compelling new evidence for double jeopardy. We well know that in a criminal case people often bankrupt themselves to try to defend themselves against charges. If a person has spent all his or her money to defend him or herself based on the evidence produced by the Crown and then the Crown says later on that it has some new evidence and it wants to go through all that again that person has no money and while he or she might get legal aid he or she might not get the lawyer he or she really wants and might not be able to afford the lawyer who got the person off on the first occasion. So there are problems with the double jeopardy principle and it will be interesting to see what happens in the select committee. 
I had hoped that the bill might go to the Justice and Electoral Committee because there are a number of complicated legal issues involved. Perhaps a Labour member might comment on that possibility. 
The area about which New Zealand First is greatly concerned and has objection to is Part 5. The trouble we have today with legislation is that the law drafter is ordered by the Government to throw a lot of issues together and they all get put in one part even though one might agree with some and disagree with others. If the areas to which I will refer are not removed from Part 5 then we may have to vote against Part 5 as a whole but we will look at that situation after hearing the evidence in the select committee. 
The area about which we are particularly concerned is the one relating to preliminary hearings. The Government intends to abolish preliminary hearings. The only justification it can come up with is a statement by the Law Commission that found that the main purpose of preliminary hearings—to act as a filter for unmeritorious cases—was not being served because the lay justices of the peace before whom they are usually held may feel unqualified to put an end to a case. 
I have appeared in preliminary hearings or “deposition hearings” as we lawyers call them and I have never had the difficulty in a deserving case of having the matter struck out by a justice of the peace on the basis that there is no case to answer. I do not accept the Law Commission’s view. I believe that preliminary hearings must continue as they are today. That is my personal view and I will be looking at the submitters’ views with interest to see whether people who practice at the bar share the view of the Law Commission. I wonder how many members of the Law Commission have actually appeared in a District Court on deposition hearings. 
I remember when I got back into practice in 1984 one of my first cases was to have an indictable offence thrown out because of poor evidence against a couple of clients. I have had a deposition hearing tossed out on an arson case where the police had called out the armed offenders squad so the witnesses were the police yet the JPs had no difficulty in throwing out that particular charge. I believe there is a strong place and a strong case for deposition hearings to continue. 
If a lawyer tries to defend a case at the deposition hearing and has it tossed out that saves the Crown a lot of money. It prevents having a lengthy jury trial with a judge—possibly a judge of the High Court—it prevents having to call in 12 jurors and it prevents the case taking the weeks that a jury trial can take. In deposition hearings that are obviously cut and dried and where there is a case to answer on today’s basis most lawyers will hand up the charges and evidence and that is the end of it. 
But lawyers may want to check out a witness at a deposition hearing and it is a useful forum to see whether the Crown’s witnesses really stack up and whether the evidence stacks up. It is often useful for the prosecutor to find out whether the prosecution witnesses can stand the pace of a High Court hearing or a District Court jury trial hearing. So I think for the Crown to dismiss preliminary hearings in the way in which it has in this legislation is an adverse effect of it and that the matter should be reconsidered. I would have thought that perhaps the Justice and Electoral Committee would be the committee that would best understand what is involved here. 
There is clause 88 “Defendant’s right to elect trial by jury where offence punishable by more than 3 months’ imprisonment”. Today when the defendant goes in the box and fails to enter a plea of “Guilty” or “Not guilty” and how he or she wants to be tried usually the Crown has to go ahead with trial by jury. Here the whole situation has been reversed from what has been the norm for many years in New Zealand. I will be interested to see what happens with regard to clause 88. 
Another issue is Part 5A “Special provisions relating to standard committal process and committal hearings in cases of sexual nature”. This provision is inserted by clause 92 which is in Part 5. It is an area that we might not oppose depending on the evidence but on the face of it it goes entirely against all the principles of New Zealand justice. It provides that a complainant must not be examined or cross-examined on a statement provided at a committal hearing. 
There are all sorts of protections given to complainants these days. So often the evidence when it comes under scrutiny falls apart—which is a reason for a pre-trial or deposition hearing. To have a complainant go to a deposition hearing and through a standard committal process make a statement without any degree of examination—not even by the prosecutor let alone by the defence counsel—means that we are going down a dangerous path. Again as I said we are talking about the committal process only and I will be interested to hear what submitters have to say on that aspect. 
My colleague Mr Brown the deputy leader of New Zealand First will be seeking a call on that in order to speak on an issue that is close to his heart. At this stage New Zealand First supports this bill to the select committee although we have grave reservations about Part 5.