Franks Stephen: Prisoners' and Victims' Claims Bill — Instruction to Committee In Committee 
Franks Stephen: Prisoners' and Victims' Claims Bill — Instruction to Committee In Committee 
[Volume:626;Page:20943] 
STEPHEN FRANKS (ACT) 
: 
 Mr Chairperson I appreciate that you had intended to close the debate on this part but the Minister might wish to consider an amendment—a technical improvement—to clause 9. Indeed I am concerned that without such a change the whole bill looks more cynical and calculating than the Minister probably intends. 
In the last line of clause 9 the term “victim’s claim” is defined by reference to “the offence” but it does not say which offence is meant. The offence that a victim of a crime is complaining about may be an offence that never resulted in a conviction. For example many burglars admit to a whole string of burglaries but may be charged with and convicted for only a representative group—three or four of them. The police can then record the rest of the offences as cleared advise the victims that they have been cleared and tell them who the offender is. But in this situation as I read this clause none of those extra victims would be entitled to claim compensation. I think the phrase “the offence” in clause 9 must refer to the offence for which the offender was convicted. It is defined as the offence for which the offender was convicted. From the definition in clause 4 it seems that “offence” is general. But I believe that when we use the phrase “the offence” it relates to the offence of the offender. 
Hon Rick Barker 
: Offence as defined in the bill. 
STEPHEN FRANKS 
: Yes but the offence as defined in the bill would have to be one that was established. The Minister may be right but I am not sure how the court would know which offence is referred to when the term in this clause is specific. If it said “an offence” then the Minister’s contention would be beyond all doubt. Certainly the claimant would still have to establish that an offence had been committed. 
Hon Rick Barker 
: The offence convicted on. 
STEPHEN FRANKS 
: Well if it is the offence convicted on then all those other complainants are victims of that offender but not for the offence that finally sent him or her to prison. There will be many circumstances where offenders may have confessed—certainly on a civil standard it could be established that they had committed offences—but those offences have never been the ones that resulted in the prisoner being imprisoned. I think that the word “the” is unnecessarily specific. It should not cause any trouble to the scheme of this legislation if “an” offence is used. It expands it to avoid doubt. Certainly if Tony Ellis were acting for a prisoner who was trying to hang on to his or her windfall gains he would try to require that the only claims that could be established were those that related to the offence that put the offender in prison. 
For example if a claim was made right at the end of a prison term by someone who had committed multiple offences the claim would probably relate only to the offence that had put the prisoner in prison for the longest time because his or her earlier imprisonment periods would have expired. If the word “the” is changed and accepted I do not think there will be any risk to the Crown and I do not think there will be any risk to the legitimate rights of the offender. It still has to be proved that there has been an offence but we will not get the possibility of this technical restriction that I am sure the drafter never intended. I believe that at least the drafter probably wanted victims’ claims to extend to any claim that related to an offence committed by one of those lucky offenders who managed to claim under the Human Rights Act the New Zealand Bill of Rights Act or any of those other judge-invented grounds of claim. 
I suggest to the Minister Rick Barker that the officials on hand—and he has a whole bench of them—should be able to confirm to him that there is nothing malign in changing the word “the” to “an”. It is obvious that the Minister wants to kick for touch although the Government has had years to think about these issues. In this case it is very late. When I was trying to consider what the Minister said by way of explanation in envisaging the sorts of claims we would get I thought that the only way a prisoner would be deprived of one of those substantial claims would be if a whole lot of his or her victims fronted up. Very few of the victims would be likely to be able to show that they were entitled to exemplary damages. Those who could establish exemplary damages might establish them only for an offence for which the offender is no longer in prison.