Worth Richard: Criminal Procedure Bill — First Reading 
Worth Richard: Criminal Procedure Bill — First Reading 
[Volume:618;Page:14214] 
RICHARD WORTH (National—Epsom) 
: 
 This is a bill of 100 clauses that has very far-reaching significance. From the perspective of National members we support this bill going to the Law and Order Committee that has been assigned to deal with it. It will be one of the most important pieces of work I believe that will be done in this Parliament. It will attract substantial interest from those who study criminal jurisprudence and if even only some of these reforms are enacted the impact on the criminal courts will be truly substantial. 
There are as the previous speaker has said a number of substantial changes that the bill proposes. The first but I do not necessarily think the most controversial deals with majority verdicts in criminal cases and I would like to come back to that in a moment if I may. Then there is the issue of trial by judge alone instead of by a jury where there is evidence of juror intimidation or the trial is complex and long. Quite clearly the philosophical issue there is whether we should move away from what has been a hallmark of the legal system in most common law countries which has seen an accused person tried by his or her peers and not by a judge alone. 
There are provisions dealing with more limited challenges to potential jurors and in the context of changes to the jury system increased penalties for failing to respond to jury notices. Then as the previous speaker has said there is the highly controversial proposal of the Government in the context of the qualifications the Minister made to substantially change the law relating to double jeopardy. I will come back to that. 
Perhaps two further changes are worth noting: preliminary hearings where the evidence would be presented in written form unless the judge decides that an oral hearing is required; and finally revamped provisions for criminal disclosure. 
It is quite clearly the case that in a number of criminal trials the defence seeks to catch the prosecution unaware. Where there are issues of guilt and innocence to be determined in the context of an offender’s conduct it is important that there be no surprises. A surprises strategy can often lead to a miscarriage of justice. 
I come back then to the first topic that I said I would return to which relates to majority verdicts. The present law in New Zealand is that in all criminal cases the verdict must be unanimous. That is not a statutory requirement but derives from the common law. There is no statutory requirement for unanimous verdicts. As far as statute law goes it is simply this. Section 17 of the Juries Act states that: “Every jury shall comprise 12 jurors.” The Act says nothing about the numerical balance required to support a verdict. While a jury of fewer than 11 jurors is legally possible in New Zealand a court is prohibited from proceeding with less than that number unless both the prosecutor and the accused consent. 
There has obviously been much discussion in common law jurisdictions relating to majority verdicts and I guess the locus classicus of the argument in favour of majority verdicts is based on the judgment of the English Court of Appeal in a case called  
R 
 v  
Walhein 
. 
It was in that decision that the court said: “It makes for great inconvenience and expense if jurors cannot agree owing to the unwillingness of one of their number to listen to the arguments of the rest.” 
A second justification for majority verdicts would be that such majorities help to prevent jury nobbling. It must be a matter of concern to all politicians no matter what their political philosophies might be that the rate of hung juries has continued to rise. The number of hung juries has risen from 3 percent of trials in 1993 to over 10 percent between January and August 1999. Those figures which come primarily from the Law Commission in its preliminary paper are the latest figures that I am aware of. In that preliminary paper the Law Commission said in part that it was of the view that: “If current rates of hung juries are substantially maintained or increased in the period prior to publication of our final report majority verdicts should be introduced.” 
My personal view is that the Government’s proposals of 11:1 need to be looked at critically and I would favour a majority balance of 10:2. In the one illustration that the previous speaker gave he spoke of the United Kingdom arrangements which are 10:2; and looking at what is going on in common law jurisdictions the United Kingdom is 10:2 Northern Territory is 10:2 Tasmania is 10:2 South Australia is 10:2 Oregon is 10:2 Hawaii is 10:2 Alaska is 10:2 and so it goes on. I am aware however that Victoria has opted for the 11:1 proposals of the New Zealand Government. So on that issue relating to majority verdicts I would express the hope that the Law and Order Committee will see the merit of a 10:2 proposal. 
The second issue which I judge to be highly controversial relates to creating exceptions to the double jeopardy principle. I have to say that in respect of the second exception the Government proposes to embark upon we are in danger of pursuing criminal adventures for all the wrong reasons. 
The principle of double jeopardy is straightforward. It is to ensure that no person is retried for an offence of which that person has already been acquitted. This bill proposes two changes to allow two exceptions to that well-understood principle. The first exception is where evidence is tainted through perjury or witness intimidation and if there are to be exceptions made to the principle then that is probably an area where an exception is justified. 
 It is in the area of the second exception that I take strong objection. That second principle concerns the case where strong evidence of guilt is established after a person has been acquitted for an offence punishable by imprisonment for 14 years or more. There are a number of problems with creating that exception. It may perhaps be justified on a populist basis. The reality however is that the legal system is not a perfect system and balances in the system have to be constantly sought. 
Double jeopardy ensures that the powers and resources of the Crown are not abused and that prosecutions are brought only where there is clear evidence of wrongdoing against an accused person. To try to justify the exception the Government has built in a number of protections in the bill. One is when a case has gone to the Court of Appeal and the Court of Appeal has formed a view that there is compelling evidence of guilt against the accused person. I have a real concern as a lawyer that if that exception is maintained it will be virtually impossible for an accused person following that adverse finding of the Court of Appeal to have a fair trial. 
The injustice of it is apparent because the Court of Appeal does not see and hear the witnesses. The reality of Court of Appeal hearings is that they are conducted on the papers. We will have a situation in which without seeing or hearing the witnesses and without an opportunity to test the evidence in any real way an accused person will have to face the prosecution against the background of an adverse determination of guilt or innocence. We need to look at that exception very critically.