Tanczos Nandor: Criminal Procedure Bill — Second Reading 
Tanczos Nandor: Criminal Procedure Bill — Second Reading 
[Volume:631;Page:2876] 
NANDOR TANCZOS (Green) 
: 
 I begin by picking up on a point that Dr Sharples made at the beginning of his speech about this bill being an omnibus bill in relation to criminal procedure. He pointed out that the bill tweaks a number of things in various ways. That is a criticism I also brought up during the first reading of this bill because the Government seems to have an ongoing and growing habit of introducing bills such as these that cover a whole range of different subject matter. Some of them are fairly minor tweaks to details of procedure and some of them as in this bill are actually significant assaults on some principles of justice. It makes it very difficult to have a proper consideration of the legislation in the House because parties are required to take a yes/no position on the bill if we recognise that some parts are positive and to be encouraged and some parts are deeply disturbing. I think it is improper for the Government to do some of the things that are being done in that manner in this omnibus bill because they cut across the House’s ability to debate consider and vote on those issues of principle properly. I have started with that comment because I think it is important. 
In this second reading speech I do not intend to go into great detail about which things the Greens support. I have already covered those matters to a degree in my first reading speech and as we go through the Committee stage we will be looking at the bill clause by clause or perhaps part by part and we will be discussing its specifics. So I want to confine this second reading speech to three main points. They concern the issues that the Greens oppose in this bill which are the reasons why we will oppose the bill at its second reading. In the first reading I indicated that it may be possible for the Greens to support the bill if we saw that some reasonably significant amendments had been made to it. I think it is unfortunate that those issues were not addressed—or at least not to the Greens’ satisfaction—during the select committee process nevertheless we hold out some hope that in the Committee stage we may be able to address some of them. 
The first thing I will touch on is the provisions around having trials by judge alone where clause 5 inserts new provisions into the Crimes Act to empower judges to order a trial without a jury in certain cases. The first circumstance is where the case is likely to be long and complex. I took heed of Simon Power’s speech in which he made I think a very strong argument for the case that jurors are highly competent and able to digest and deal with very complex information. They do that all the time in our courts and produce good results in the vast majority of cases. That is not to say that sometimes there are not problems but I think that that would be true whatever procedure was used in a case and that we have to recognise that jurors can and do deal with very difficult long complex cases very competently. Nevertheless it is also true to say that some issues are of enormous specialist and technical difficulty so it would be difficult to expect an ordinary member of the public to deal with some of those matters. I think there is an argument to be made that very long and complex specialist trials might be better decided by a judge alone so there are arguments in both directions on that particular provision. 
The provision that probably disturbs me a little bit is that concerning evidence of intimidation of jurors. If we actually look at the provisions in the bill such as new section 361E in clause 5(1): “Judge may order trial without jury in cases involving intimidation of juror or jurors” we see that new subsection (2) states: “However the Judge may make an order … only if satisfied that there are reasonable grounds to believe—(a) that intimidation of any person or persons who may be selected as a juror or jurors has occurred is occurring or may occur;”. I think that that is a very broad provision. It is not saying that the intimidation must have occurred or must be occurring but simply that it may occur—intimidation may occur. Well what on earth does that mean? I think that that is open to enormous scope for misuse. Although I do not expect that most judges are going to be tempted to do that I think the legislation we pass in this House must be free of that potential. So those provisions are enormously problematic and they are something the House should go back and have another look at. 
The whole question of there being reasonable grounds to believe that intimidation is even occurring is a difficult one. I think that that provision has a fairly low burden of proof. If we look at some of the provisions the police have for reasonable grounds to search for example and if we look at the courts’ test of what that hurdle actually is we can see there is a fairly low burden of proof. So as I say I think that is an issue we need to address. 
As we start to move away from the idea of trial by jury in some of those exceptional cases it makes me wonder what effect that move will have on appeal rights. I am not a trial lawyer; I am not even a lawyer actually. In fact Darren Hughes once suggested in a select committee that he thought I might have been a lawyer and I was not sure whether he was trying to insult me or flatter me. I think it was the former actually. 
Darren Hughes 
: I did promptly apologise to be fair. 
NANDOR TANCZOS 
: That is right and I accepted the member’s apology. I am not a lawyer so perhaps I am speaking out of ignorance. But I am just brought to mind of the consideration that the Justice and Electoral Committee gave to the petition in relation to the Christchurch civic crèche case. Although I have no view on Mr Ellis’ guilt or innocence—and he has been found guilty—one of the issues that arose in the committee when we were looking at the procedures for appeal was that a decision by a jury is in a sense sacrosanct. There is a kind of view that a finding of fact by a jury cannot be the subject of an appeal. We can look at procedures and various legal rules and check for formal fairness of procedure but we cannot actually appeal the decision of a jury except in very exceptional circumstances. It makes me wonder whether some of those aspects of security in the justice system will be undermined by a move away from trial by jury in some of those circumstances. 
The other issue I would like to address is the matter of the exceptions to double jeopardy. I guess the Greens’ view follows along to some degree with the Attorney-General’s view. Again there are two exceptions. The first is where the accused has committed an administration of justice offence resulting in a tainted acquittal. The Attorney-General is reported in the commentary on the bill as saying that although that is a breach of the New Zealand Bill of Rights Act it is “justified under section 5 and is consistent with New Zealand’s international and domestic legal obligations.” The view the Attorney-General took was that “a tainted acquittal is not legally a legitimate verdict but a nullity” therefore the case can go to retrial. That is an interesting point. The Greens certainly think there has to be some way of addressing a tainted acquittal but they think that increasing administration of justice penalties is not really an appropriate way to come at it. The select committee addressed that matter and we agree with its comment. 
The Greens have a problem with the matter of new and compelling evidence because the select committee report talked about the fact that discovering new and compelling evidence after a trial has become more likely with the development of technology. That is true but the bill does not confine that discovery to new technology. It talks about an exception in relation to new and compelling evidence and we think that without further safeguard there is a real potential for abuse of that procedure. We certainly know there have been some rare but nevertheless existent cases of fabrication of evidence and it seems to us that such a provision provides real temptation in cases where police are convinced someone has done something. They may be correct or incorrect but if they are unable to secure a conviction they might then have another go perhaps by fabricating evidence. We think that those kinds of temptations should not be put into law and that that is a very dangerous move. The Attorney-General’s advice made an interesting point—that “lifting current maximum penalties above the threshold will offer an expedient way to extend the reach of the exception without having to give proper consideration to the consequences of undermining the double jeopardy rule.” The Greens think that that is advice this House should take great note of.