Finlayson Christopher: Criminal Procedure Bill — In Committee 
Finlayson Christopher: Criminal Procedure Bill — In Committee 
[Volume:638;Page:8248] 
CHRISTOPHER FINLAYSON (National) 
: 
 That was an atrocious contribution from the Minister Mark Burton—and indeed Mr Fairbrother’s modernist contribution to this debate was nothing short of atrocious. It illustrated an absolutely cavalier approach to the rule of law and to the fundamental rights of people who are charged with serious crimes. Indeed the Minister should heed the words of the ancient prophet Micah who said that we must adapt to changing times while holding fast to unchanging principles—and double jeopardy is one such fundamental principle of our criminal law. It is an ancient principle and it has been a key aspect of New Zealand’s criminal law as inherited from England from time immemorial. New Zealand law has always provided that a person acquitted of a crime can never be prosecuted again for the same offence. It is a basic safeguard of civil liberties in every legal system comparable with our own. I have not studied criminal procedure since Miss Alice taught me criminal procedure in 1976 but I have had a good look at this legislation and I find the more one looks at this legislation the more concerned one becomes. 
It is timely to remind members of this Committee of the main purposes of and the importance of the rule against double jeopardy. The first purpose is to prevent harassment. It is a fundamental purpose of the rule—which terminates criminal litigation—that it prevents harassment of an accused person by repeated prosecution for the same matter. I refer the Committee to what Justice Black said in the Supreme Court of the United States in  
Green v United States 
 in 1957: “The underlying idea—” [ 
Interruption 
] It is a fundamental principle but I notice that Mr Fairbrother scoffs. He should listen to this: “The underlying idea one that is deeply ingrained in at least the Anglo-American system of jurisprudence is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity as well as enhancing the possibility that even though innocent he may be found guilty.” 
Hon Lianne Dalziel 
: It’s 50 years ago! 
CHRISTOPHER FINLAYSON 
: I point out to the Minister of Commerce those very important words “the State with all its resources and power”—as against the individual who is charged with a crime. We know that that imbalance is getting worse because of the failure of this crummy Government to do anything about legal aid so that people are adequately legally represented—and I will say more about that in the near future. But why should the State with all the resources and power at its disposal be allowed to make a repeated attempt to convict an individual? That is the fundamental reason why we have double jeopardy. 
The second reason is to avoid inconsistency and to secure the finality of verdicts. A consequence of the rule against double jeopardy is the protection of the administration of justice itself. The rule promotes confidence in court proceedings and in the finality of verdicts. As the Law Commission report in 2001 stated: “A clear corollary of the rule is that occasionally the guilty will escape punishment but that is inevitable in any system of justice that must accommodate conflicting interests and finite resources.” Mr Fairbrother as the most experienced criminal lawyer in this Committee knows that principle only too well because of all of the people he has represented over the years. 
The third point which is a fundamental principle is that the rule against double jeopardy promotes efficient investigation. The promotion of efficient investigation preceding prosecution of the original trial I would have thought was a principle that had considerable force. Giving the Crown an opportunity to revisit its case after an acquittal would provide perverse disincentives to investigating efficiently right at the outset. I am sure that Mr Fairbrother in the course of his career would say “Amen to that!”. There will be many instances where the Crown did not investigate properly so why should it be given the opportunity essentially to persecute a defendant so that it can get it right the second time? 
This is wholly unsatisfactory legislation and as Mr Borrows has said the law exists not just for the great and the good but for some of the most despicable members of our society because they are entitled to the protection of the law and not to be rounded up and disposed of—as happened in Nazi Germany for example. Some members of the Committee may have seen an excellent film which was on shortly before Christmas called  
Sophie Scholl 
. It was an excellent illustration of what happened when some young people tried to stand up to Hitler in Munich. We are entitled to the basic protections of the law—all people all New Zealanders are. 
So let us take a look at this legislation. As Kate Wilkinson has said section 378A in clause 7 is odious and we reject that section in its entirety—I certainly support what Kate Wilkinson has said about that. Section 378B in clause 7 will I understand be the subject of an amendment proffered by Kate Wilkinson in Supplementary Order Paper 51. The amendment makes a lot of sense because subsection (2) is tightened by the addition of a paragraph (c) requiring the obtaining of new evidence by DNA technology. So if the evidence is to be regarded as new firstly it must not have been given in the proceedings that resulted in the acquittal secondly it could not with the exercise of reasonable diligence have been given at those proceedings and thirdly it has been obtained by DNA technology. I consider that that tightens up that provision and I will come to section 378D shortly. 
As Mr Borrows said—and the Minister did not adequately answer this—section 378C in clause 7 really is quite troubling. Let us look at some of the things the police can do if the consent of the Solicitor-General is obtained. It beggars belief that in a liberal democracy like New Zealand’s consent could be granted to permit the police to question the acquitted person to search the acquitted person or any other person to search any premises or vehicles or seize any thing to take fingerprints or samples or to permit the conducting or commissioning of forensic tests and analyses. That really is very heavy-handed stuff and I am not satisfied that the safeguards the Minister referred to in section 378C are adequate. I agree with Mr Borrows that it is real storm trooper stuff. 
Finally I refer to section 378D in clause 7. As Kate Wilkinson said there need to be some safeguards if that section is to operate. She has very cleverly I think provided for those safeguards in her Supplementary Order Paper by tightening up section 378B(2). 
So there we have it. The National Party is very concerned about this legislation. I have some real concerns about clause 5 for example which changes the rules relating to jury trials but we are prepared to go along with that given the very limited nature of the changes proposed. We will be looking very carefully at that in practice. But there is a line beyond which one cannot go and the double jeopardy proposals here constitute that line. As I said this is odious legislation. It is unacceptable in any liberal democracy. It goes completely against an ancient principle the justification of which has time and time again in court case after court case been emphasised. That is why we will not support it and it is why we have proposed through Kate Wilkinson Supplementary Order Paper 51.