Boscawen John: Criminal Procedure (Reform and Modernisation) Bill — Second Reading 
Boscawen John: Criminal Procedure (Reform and Modernisation) Bill — Second Reading 
[Volume:676;Page:21430] 
Hon JOHN BOSCAWEN (Leader—ACT) 
: 
 I am particularly proud to stand and take a call this afternoon on the Criminal Procedure (Reform and Modernisation) Bill on behalf of the ACT Party. The reason is that the bill we are debating this afternoon is substantially and fundamentally different from the bill that was reported back from the Justice and Electoral Committee. One party more than any other party in this Parliament has contributed to that and that is the ACT Party. This afternoon I intend to explain to this House and to New Zealand why that is so. 
There is much much good about the provisions in this bill. Without doubt we acknowledge that we need to deal with excessive delay we need to deal with excessive cost and we need to modernise the criminal justice system. There was much in this bill as reported back to the House in July that all parties in the House agreed with. However there were some fundamental disagreements and those were ideally set out in the Labour minority report. 
We have seen the Minister of Justice this afternoon identify the six major changes he intends to incorporate into the bill by way of Supplementary Order Paper. Although I intend to deal with three of them in some depth let me just summarise the six key issues that the Minister of Justice advised this House of earlier this afternoon. First he said that he intended to remove the issues in dispute provisions; secondly he made a change to the jury trial threshold from 3 years down to 2 years; thirdly he changed the procedures that relate to trying a defendant in absentia; fourthly he made changes to the costs order provisions; fifthly he changed the basis for a miscarriage of justice from “a substantial miscarriage of justice” to “a miscarriage of justice”; and finally he changed the threshold back from 12 months to 6 months in the case of minor offences. He highlighted to the House the six major changes. 
What I say to New Zealand this afternoon is that this bill as reported back to this House—all 640 pages—was reported back to the House by the Justice and Electoral Committee with the recommendation that the bill be adopted. As the Leader of the ACT Party as the leader of the party with which the National Government has a confidence and supply agreement I was asked by the justice Minister by Mr Power in his office to provide him with the five votes needed to pass this bill. On behalf of the ACT Party I was asked for the ACT Party’s support to pass this bill. I have no doubt that had I given that support in August this bill would have been passed. It would already have passed through this House but it would have passed in a substantially different form. Although the Supplementary Order Paper that makes those six major changes is but four or five pages long the provisions contained in just those four or five pages substantially change what is in the initial 640 pages. I make it absolutely clear to New Zealand that when I took this back to the ACT caucus ACT’s five MPs were absolutely united that they were not prepared to support this bill in the form in which it was sent back to this House—absolutely united. 
I have identified the six major issues that the justice Minister has already mentioned this afternoon and said that he has changed. I will focus on three of those. The first one is the requirement to identify issues in dispute. What does that mean to most New Zealanders? What does it mean to have to identify issues in dispute? I suggest that for probably 99.9 percent of New Zealanders it means very little but it actually goes to the heart of our justice system. Most New Zealanders know that when a person is charged with a criminal offence it is up to the State to prove the case beyond all reasonable doubt—beyond all reasonable doubt. There is a massive mismatch between the resources of the State—the police the investigating forces the Crown prosecutor’s office—and a defendant. But it is up to the State to prove the case. The defendant under our constitutional democracy is not required to do anything to assist. Under current conventions the defendant is not required to assist in his or her prosecution. The defendant has the fundamental right to remain silent. It is up to the Crown—it is up to the police—to prove the case. 
In the bill that was reported back to the House in July the National Government proposed to change that fundamental right. It proposed to take away one of our most fundamental rights and freedoms. It proposed to take away the right to remain silent and to take away the requirement for the State to prove beyond all reasonable doubt that a case had been found against a defendant. 
When I listened to the comments of Simon Bridges this afternoon—and I am very very pleased that Carol Beaumont picked up on this point—I almost got the impression that he did not actually understand the bill. If that is the case it is little wonder that the Justice and Electoral Committee came to the position that it came to in recommending this bill—either that or Mr Bridges was trying to seriously misrepresent the position as contained in this bill. Mr Bridges said that the arguments against this bill were reduced to a mantra. He argued that the right to remain silent the requirement to identify issues in dispute was not actually under debate. Well if he had listened to the speech of his own justice Minister Simon Power he would have heard Mr Power already raise the white flag—“I surrender; I accept I have made a mistake.” 
What this bill highlights probably more than any other bill that has come to this Parliament in the last 3 years is the fundamental importance of the ACT Party’s continuing in this Parliament and continuing to grow and to prosper. It is the ACT Party that has upheld those constitutions. One might ask what the issues in dispute are. Well what this bill required defendants to do was to identify all of the areas that they would challenge and to tell the prosecution in advance what they would rely on what their alibi was and how they intended to defend the case against them. That would have allowed the police to train witnesses and to help coach witnesses to present evidence in a particular way that would make it much harder to bring that defence. That would have fundamentally changed the balance. 
Another key issue is in clause 376 of the bill which I will read verbatim. Clause 376 “Proceedings not to be questioned for want of form” states currently: “No charging document … conviction sentence … may be dismissed set aside or held invalid … unless the court is satisfied that there has been a substantial miscarriage of justice.” Well right now the law provides that the test be a miscarriage of justice so most New Zealanders would think that if there had been a conviction or a sentence that represented a miscarriage of justice they would have got off and would have been entitled to a retrial. That is not the case. The Government intended to raise the bar. 
Finally we have heard about jury trials. I campaigned against smacking offences. I campaigned against home invasion. Setting the jury trial limit to 2 years enables a person charged with those sorts of offences to be charged and tried by a jury of their own peers. 
The ACT Party supports the bill and we are very proud of the role that we have played in having it in the form it is in today. Thank you.