Borrows Chester: Third Readings — 
Text is incorporated into the Bound Volume 
Borrows Chester: Third Readings — 
[Sitting date: 19 June 2008. Volume:647;Page:16782. Text is incorporated into the Bound Volume.] 
CHESTER BORROWS (National—Whanganui) 
: 
 It is an irony of life in Parliament that it is true that some members of Parliament take incredibly lightly the privilege of making a law. It was from the standpoint of taking this privilege seriously that National proposed under my name the Supplementary Order Paper that put forward the withdrawal of Part 5 of the original bill. Part 5 removed the right for a defendant to have oral depositions. So I want to address my comments in respect of depositions and disclosure rules. 
Whenever we talk about a defendant’s rights there are two reactions. There is either apathy from the majority or apoplexy from those who would prefer a regime similar to those under Mugabe and Bainimarama. The measure of a civilisation is how it treats its most vulnerable and in this country we treat the innocent vulnerable—the victim—pretty appallingly. But we treat the guilty vulnerable—offenders—much worse. I ask those who would pass this legislation with no consideration or reflection to think on this and to think on just what we are doing here today. 
I came to Parliament to reflect and represent the electorate of Whanganui and that is my chief role but I like every other member of this House bring with me certain qualities experiences and characteristics that define me. There are questions on the defining issues and those issues are on a continuum of issues that go to who we are as individuals. Although they may be ethereal to some they are truly salient to the true believer and the continuum runs from the strongly held belief to the absolute bottom line. It is not a good political move to declare publicly one’s absolute bottom lines but what should be perfectly plain is the moral imperative to live up to the expectation of those who put us here given who we are. There should be no surprises. 
It is interesting to note then that the person most surprised at my voting for Part 5 is me. My experience prior knowledge and skills mean that among those I came to Parliament to represent are victims—innocent victims and guilty victims. Those who appear before our courts are frequently the authors of their own misfortune or of calculated cold and callous offending. Often too they are the result of negligent manipulative indifferent or absent parents and caregivers. Does anyone believe for instance that Bailey Kurariki is not both an offender and a victim? He should carry the can for his offending and the bad decisions that he freely made but we all want to believe that we live in a country with equality before the law and with equity of arms in respect of access to justice. Our rights in this country are here to protect us all—the most innocent and the most despicable the deserving and the undeserving—because that principle of justice for all is what separates us from Zimbabwe and Fiji or Burma and China. The simple clarifying question is this: would one rather be an accused person in Suva Harare or Auckland? 
My having said that it is important to note that what we are doing in respect of the removal of depositions is altering legislation that for generations has protected in a fair way those who have been accused before the courts. It has been a hallmark of our justice system and it is encapsulated in the phrase that it is better that 10 guilty people go free than one innocent person is convicted. 
In looking at the two elements that I want to speak to—Part 2 of the original bill around criminal disclosure and Part 5 around depositions—I want to make a number of points. I am voting for this legislation now because we have managed to achieve some concessions from the Government. Those concessions are firstly—and we achieved this one a long time ago—that one of the bases on which a judge may award an oral evidence order is that he believes that it is in the interests of justice. Another concession is that in making written submissions in respect of seeking an oral evidence order an applicant can make oral argument to it. Previously that provision was not there and it was not a feature of the Law Commission’s report to the Ministry of Justice in preparing this legislation. The third reason is that the Government has agreed to a 2-year review of how depositions work. 
The main reason for opposing depositions being in the form that they are in this legislation from my point of view was that disclosure does not work. Also the removal of depositions was supposed to speed up the trial process but there are other ways of addressing delay that have nothing to do with depositions. But the validity of depositions in the form that they are in this legislation will hinge critically on disclosure. The main reason why depositions are lagging and there are delays is around disclosure by the police. We have to remember too that currently common law and precedent force the police to make disclosure yet in spite of all that disclosure is not made. The most recent obvious case of that is the Kahui trial where in front of the jury it was shown that police had not disclosed and—what do you know—before too long the jury found that it could not convict. So how are the courts in seeking to review how well the system works able to measure whether disclosure has been made when they do not know what it is? At the moment the disclosure is made on the papers but there is no way of testing it by an oral discussion or cross-examination before the court. How does one know what one does not know? That will be the challenge for anyone seeking a review—the Solicitor-General in particular. 
I would suggest to the department for courts within the Ministry of Justice that what it needs to do is to institute a policy where where practicable the judge who will hear the trial—the trial judge—also hears the pre-depositions conference. At the moment pre-depositions conferences are not heard by a judge; they are generally heard by a deputy registrar but where they are heard by a judge a much more strident view is taken of lack of disclosure. If we want to hold to account the parties to an action we need to ensure that a judge hears the pre-depositions conference because he or she then has ownership of the matter as it travels through the court system. Through the depositions process the judges know the case they know the parties and they know the glitches and the hitches that will come along and work against justice unless the provisions in relation to disclosure are well kept. 
The next thing that needs to be done is that the Ministry of Justice needs to ensure that it is keeping tabs on the exact number of depositions cases that are made; the applications for oral evidence that are made; the reasons why judges are not awarding them and those notes must be full; the number of cases for instance where there are changes of plea before depositions and before the trial; the number of section 344A and section 347 applications that are made; how long those applications take to be heard; and what those issues are as they are raised. 
I raise this matter now for a particular point: the department for courts would have to be the worst department to seek information from. Every time one seeks information from the department one is told that it does not collate the information one is seeking that it cannot give it or that it would take too long to find out. It is absolutely hopeless. Time and time again one needs to go before the Ombudsman to get the information. It is the department for courts’ lack of ability that we are most concerned about. 
The other point that needs to be made here—and I make it again so that it is recorded—is that there must be acceptance by the police that this legislation requires them to make full disclosure. They cannot simply adhere to the disclosure rules as they are to date; the police cannot address the disclosure law under this legislation so slovenly. It is for the courts to then determine what the punitive aspect for the police not disclosing in a timely manner will be. I predict that the Crown will lose matters before the courts at trials trials will be longer and pre-trial applications will be longer and more expensive because they will be heard before a judge. It must be reinforced that there must be a cost for not adhering to the disclosure rules under this legislation. 
I look forward to a review in 2 years. I look forward to it being open and honest. Mostly I look forward to the department for courts supplying the information that will allow the Solicitor-General to make a proper decision in this matter.