Borrows Chester: Criminal Procedure Bill — Second Reading 
Borrows Chester: Criminal Procedure Bill — Second Reading 
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CHESTER BORROWS (National—Whanganui) 
: 
 I rise to speak in respect of the Criminal Procedure Bill. I will carry on from where my colleague left off and speak specifically on the issues around preliminary hearings. The reason preliminary hearings become important is that they were initially introduced for one reason but have moved on to be used for a number of other things. I guess that is the case with a lot of legislation that enters the House. 
They were initially introduced for the prosecution to prove a prima facie case—that on the face of it there is enough evidence in the hands of the prosecution to cause someone to be charged and to have the case heard before a judge and by a jury. Those preliminary hearings or depositions—or “deps” as they are known—are usually presided over by community magistrates or justices of the peace. They are prosecuted by a policeman and obviously defended by a defence counsel or lawyer. In actual fact deposition cases are relatively cheap to run because the people hearing them are not getting paid and they do not involve a whole lot of jury time. Relative amounts of evidence are accepted in written format and cases tend to move through quite quickly. But having been introduced to show that the prosecution on the face of it has a case to bring they are now being used—or they are growing to be used—for a number of different purposes. 
One of those purposes is to test the weight of evidence against the elements of an offence. By way of explanation if we consider for instance a case of burglary there is a need to prove the breaking in and entry of a building or something legally considered to be a building the identity of a supposed offender and obvious intent to commit a crime inside that building. So the elements required to be proved are those five issues and at a depositions hearing evidence would have to be brought to show that each one of those elements can be proved. It is a chance for the police to show that what they are asserting—the case against the defendant—actually stacks up. It tends to focus the police on those elements and on their case to ensure that they are ready at a given time to be able to prove the case. 
It also tests on two levels the witnesses who will prove those elements. One of them is the question of whether they will show up. That is a big question when it comes to for instance family violence or sex crime matters or issues around relationships between witnesses and defendants. It really sets in the minds of the witnesses the question of where they are going to stand on the matter; whether they will actually come through with the goods and whether they will back up the statement that they gave to the police possibly when half-drunk or possibly in the heat of the moment. Usually depositions come along several months after the incident so there has been a time for settling down. So they test whether the witness is going to turn up. 
The next point is whether a witness will give the evidence that the police say the witness will give. What frequently happens is that a witness does not because of the passage of time or because of the repatriation of relationship or just because of the fact that the witness has sobered up. The depositions hearing also confronts the defendant with the evidence that lies against him or her. I have seen depositions hearings from the point of view of a detective bringing the charges in the first place with every interest in seeing that all the prosecution witnesses stack up; and then as a prosecutor running somebody else’s case and looking at the same things but from a legal point of view; and latterly as defence counsel looking for the flaws and with renewed interest at whether those witnesses are going to stack up. 
It becomes incredibly important as to how conscientious the defendant is or how committed he is—it is generally a he—to the plea that he has given to start with. In Taranaki 50 percent of the indictable matters that go to depositions are resolved at depositions. That is a huge proportion. Quite honestly it is usually because the defendant thinks to himself: “Hell there is no way out of this. I am going to nod the block.” and he pleads guilty. The evidence may not quite stack up so the police make an accommodation and a charge is preferred—probably less than the one the defendant was initially charged on—the defendant decides that the best course of action is to plead guilty to the lesser charge and the trial is dispensed with. As a defence counsel one may have spent some weeks or months trying to convince a defendant that the case against him is heavy and that he will get done like a dinner but for one reason or another the defendant thinks that he is smarter than the rest of the world and he will get away with it. When the defendant is standing in the court listening to the evidence come out and the witnesses who are testifying against the defendant come through and come up to brief the defendant is firmly focused on how much time he will get should he go down. As there is a discount in time for an early guilty plea frequently the defendant takes the bag and bites the bullet. 
The main reason why this bill is being promoted appears to be one of expediency as my colleague referred to. It is true that trials—both High Court and District Court trials—cost a heck of a lot of money. This is not only directly because those involved are paid—quite honestly jury fees are not that much—but the loss of productivity in having those people away from work for extended periods of time can be huge. Then there are all the players within the jury court system—the judge the court staff the police witnesses and the other witnesses who are called to give evidence. The cost is huge. The fact that so many cases can be settled at a depositions hearing means that the money saved by keeping depositions in my view and the view of many others would vastly outweigh running through the trials or the money that could be saved by taking depositions away. 
Other concerns around the proposal of pre-trial hearings are around the interest of justice. It is interesting that when the Greens the Maori Party or even Labour start talking about the interests of justice then they are doing that because they are interested in justice but whenever a National member starts talking about the interests of justice he or she is protecting rich mates who happen to be lawyers. The fact is that the interests of justice need to be protected. The elements of the rule of law in this country that date back hundreds of years to their birth in the UK are important things. If they are eroded then the whole of society loses. One of those elements is being able to test the evidence. One of the fundamental erosions in this part of the proposed legislation is that any applications for oral testimony at a depositions hearing will be done on the papers. This fact and the fact that having been filed in court it is considered without any contest apart from submissions on the opposing side and is decided by a judge behind closed doors is a significant erosion of the interests of justice. This legislation will result in longer trials more trials and costlier trials. That is not in the interests of justice in this country. 
I will speak momentarily on judge-alone trials. One thing that has occurred time and time again in complex fraud trials or other complex trials is that on many occasions solicitors have asked to be able to explain or outline their cases to the jury by way of audiovisual aids. They are denied that on the grounds that it becomes too simplistic and a jury may be swayed in that regard. I cannot carry on with that because I have run out of time but it is a real fear.