Borrows Chester: Criminal Procedure Bill — In Committee 
Borrows Chester: Criminal Procedure Bill — In Committee 
[Volume:647;Page:16609] 
CHESTER BORROWS (National—Whanganui) 
: 
 I rise in respect of Part 5 and I have to say that in offering these few words in respect of it the issue relates to a belief I have held very closely for a long time. Members will know that Supplementary Order Paper 50 in my name sought to remove this part from the bill. The reason why I wanted to do that was that it was part of the stuff that I believe I bring to this House and for me it is fundamentally a question of justice. It is not a popular or sexy thing to want to extend justice and rights to those people whom society abhors. I want to live in a country where people are innocent until they are proven guilty and where black-letter law supports that ideal. I believe that people should have the opportunity to be able to cross-examine those who would make assertions against them. 
In response to the people who have come to me and said that we are only wasting time and dragging our heels through the court process I guess that my question would be to ask them what we are trying to do here. This part of the bill has been sold on the basis that it will speed up the court process. In fact court delays are down to a number of things not to the existence of depositions hearings. If we look at the statistics supplied by officials from the Ministry of Justice we would think that 95 percent of the matters that went to depositions hearings went on to trial but in fact they do not. When we look at those statistics we see that 47 percent of them go on to trial but the rest of them fall over for one reason or another. Either the prosecution is found to be wanting and the charge is dismissed or guilty pleas are made at depositions hearings because witnesses come up to brief and defendants get the frights realise that they will be convicted and realise that it is best that they grab hold of the discount for pleading guilty at depositions hearings rather than waiting until trial. Or else as a result of counsel listening to the evidence after the committal has happened there is a discussion between the prosecution and defence counsel and pleas are made then. So around the country about half the matters that are defended initially and would go to trial fall short of going to trial. 
That means obviously that depositions hearings actually speed up the court process because without them and without the opportunity to examine some witnesses before the court there would be more trials. If we go on to remove depositions hearings in the form they are in now and if people are not able to cross-examine witnesses orally people will make section 344A applications and section 347 applications before judges. Those applications will have to be heard before the trial judge who is paid a heck of a lot more than the two justices of the peace who sit there for free listening to a depositions hearing. For instance if this had happened in the Jhia Te Tua homicide case which is travelling through the court process at the moment there would have been 3 weeks of applications in respect of those two sections and in that case the depositions hearing lasted about 8 days. 
There are probably four reasons why there are significant court delays. One is that judges frequently lack the force of personality needed to hold either the defence or prosecution counsel to account as far as timetables and disclosure rules go to ensure that they are met and matters rattle through the court process in a speedy way which is what the system is designed for them to do. The second reason for court delays is that prosecutors principally police officers do not disclose the information they are required to disclose. If we look at why depositions hearings are adjourned time and time again we see that one significant reason comes out more commonly than any other: a lack of disclosure on behalf of the police. 
The third reason for court delays is that some defence counsel within the system are milking it. They believe they have a right to milk the system because of inequities within the legal aid system—between the rates of pay between legal aid lawyers and Crown solicitors for instance. Crown solicitors are paid at the intermediate rate as per the legislation; in respect of depositions hearings they are paid for 15 hours’ preparation time and they also have 8500 sworn officers of the New Zealand Police to go about doing their bidding in terms of making inquiries. Legal aid lawyers are paid for 3 hours’ preparation time and if they want someone to make inquiries on their behalf they have to go back to the Legal Services Agency and ask whether they can employ a private investigator to make those inquiries. So there is a huge inequity of arms. I do not agree with having legal aid lawyers milk the system—nobody does—but that is the third reason. Another reason why some trials lag on is that there is an under-resourcing of the Institute of Environmental Science and Research in relation to methamphetamine trials. 
I think that the fundamental question is whether we want to live in a country where one is deemed to be innocent until proven guilty. If we do then this is the system that we would stick with. If we do not then we could go and live in a place like Zimbabwe or Fiji and no doubt we would be on the right side of the M16 and we would not have to worry about it. But I believe that this is a fundamental question and that what we are doing here today is extremely significant with regard to jurisprudence in this country. 
The reason why I have withdrawn my Supplementary Order Paper is that we have managed to get from the Government a couple of concessions. One of them relates to the provision where a person makes written submissions for an oral depositions hearing and is allowed to make only written submissions and not speak to them. It is fundamentally incongruous in what is supposed to be a judicial system that one cannot even speak to one’s submissions. The only other place in the criminal law where one does that is when the judge is deciding a banding in terms of which court the trial should be held at. To suggest that we could have something that is so fundamental to equity in this country and within our jurisdiction and that one could not speak to it is absolutely abhorrent. So thankfully the Government has rolled over on that provision. The second point is that after 2 years there will be a review as to how well the system works. I am somewhat reluctantly resting assured that there will be a review. Given a successful outcome at the election that is coming up I hope very much to be around and to be able to hold the Government and the Solicitor-General in particular to account as to how that review will be managed. 
I intend to ask questions of the Minister in the chair the Hon Rick Barker shortly—so I hope he is paying close attention—about the measures he will put in place now so that when we want to look at this matter in 2 years we do not get the dumbarse response we get from a lot of officials saying they do not collate certain information and have never collected it. We will want to know which trials have been proposed and which trials have been abandoned for one reason or another. We will want to know the reasons given for that abandonment. We want to know which measures there will be to ensure that when we come to that review we will know how many were proposed how many were abandoned and how many guilty pleas were entered and at which stage—at depositions hearings or prior to depositions hearings with the threat of those hearings looming. For instance we will want to ask how many pre-depositions conferences were put off or would have been put off because the police failed to adhere to the disclosure laws as they exist under this legislation. At the moment no one can tell us about that. At the moment if we ask the Ministry of Justice why pre-depositions conferences have not occurred or why depositions hearings have been delayed no one can tell us whether it is because disclosure has not been lived up to by the officers in charge of the case. 
I want the Committee to realise that what is happening today is truly significant. I know this issue is not sexy; I know it flew under the radar as far as popular opinion out there goes. I know that damn near all the judges who lobbied members of Parliament—particularly the Government members—in favour of this part of the legislation have never stood in a criminal trial in their lives.