Cullen Michael: Bail Amendment Bill — First Reading Second Reading In Committee Third Reading 
Cullen Michael: Bail Amendment Bill — First Reading Second Reading In Committee Third Reading 
[Volume:651;Page:516] 
Hon Dr MICHAEL CULLEN (Labour) 
: 
 It gives me some pleasure to rise to speak to the Bail Amendment Bill. The bill is interesting in that it deals with an important issue but in the end really does nothing about it. I think that is the essence of what the Opposition is arguing. 
Obviously the issue is important. I do not think there is anybody in this House—even the most liberal on penal policy—who regards seriously violent crime and indeed other serious forms of crime with anything other than abhorrence. Anybody here who read the material about the Nia Glassie case for example and many other cases over the years simply fails to grasp or understand how people can be so evil so cruel and so thoughtless about the actions they engage in. It is beyond the comprehension I think of anybody in this House to think about what kind of mind can bring itself to do that kind of action. Equally much less serious forms of crime can impact seriously upon people. Minor forms of burglary feel like a form of invasion for the individual. It is a disruption of one’s life. It is an invasion of one’s privacy. It can result in the removal of things that are perhaps of little material value but of great non-tangible value to families. 
People want to see those responsible for crime punished not least because the traditional reason why the State punishes crime is in part to prevent other people from punishing crime. It is to ensure that the Crown—the King or the Queen—keeps unto itself a monopoly if one likes on retributive power; otherwise we descend into a state of mutual retribution and endless cycles of retribution. We would also like to see more effective rehabilitation within the penal system yet I suppose we can say that successive Governments have failed to achieve as much in that respect as we would all like to see. I wish the new Government well with its plans for drug and alcohol rehabilitation within prisons. I hope it can get that kind of money for penal policy out of my successor as Uncle Scrooge. 
That is all well and good but there also is a lot of rhetoric on these issues that bears not a great deal of relationship to reality. There is an idea that simply by having ever stronger penal policy ever longer sentences ever more difficulty in getting bail and ever more difficulty in getting parole somehow or other these crimes will go away. I think Ms Lee fell into that mistake quite badly by arguing that this particular change—which as one can see if one stands not very far back at all is a very marginal change to the provision of bail—will somehow prevent people from committing serious crimes. Well it is most unlikely to do so. It is certainly most unlikely to prevent any first offender from committing a serious crime because the first offender is most unlikely to have the kind of record or the kind of experiences that will alert a judge to the possibility that he or she is likely to commit a serious crime if let out on bail. It will not necessarily prevent people from committing crimes after they are released from prison—prevent them from being second-time offenders—unless we say that for every kind of serious offence people are locked up for life and we mean life. If we mean that we had better start building an awful lot of prisons very quickly. That would create an awful lot of difficulty. 
All of those things really are true. As Annette King wisely said—and I think the Government would be wise to listen—making bold promises within a matter of weeks of becoming the Government that these kinds of actions will mean we do not have any more horrendous attention-grabbing headline-grabbing crimes that revolt the nation merely exposes one to enormous risk in the future. It means that even if we do not choose to visit those words back upon the Government the media will certainly choose to visit them back upon the Government at some point in the future particularly during the dead news season over the Christmas holidays and the new year when crime dominates the headlines on television and in other media because not a lot else is going on. That is why crime dominates in that period. It is not necessarily because there is more crime; it is because there is no other news for the media to cover. 
So what does the bill actually do? It basically is the equivalent of pressing the circle button on one’s Sky TV remote. It moves one back to channel 23 from channel 24 if one was on channel 23 previously. It simply removes a change and goes back to the previous law in terms of bail. What does that mean in practice? On the one hand it might mean slightly more confusion in that the changes introduced in 2007 were merely an attempt to clarify the intention of the law given the fact that certain members of the judiciary had arrived at certain views that did not seem entirely consistent with the law. But on the other hand there is a great deal of case law and many statements from judges already that can be taken as a guide and by and large the statements from judges on cases since 2007 have indicated that in their view the 2007 changes made very little difference to the interpretation of the law. In other words if we are to go by what the judges have said so far based on the 2007 changes we cannot expect the judges to make much of a change in interpretation based on this particular law. So again I say to Ms Lee that she should be very careful. 
Let us also remind ourselves of one quite fundamental point. Our system assumes that people are innocent until proven guilty. The presumption is that bail is given unless there is good reason in terms of the interests of protecting the public not to give bail. Otherwise one ends up with an increased risk of people who will be found innocent having spent considerable periods of time in jail. That of course is not a desirable outcome. People are innocent until proven guilty. 
Hon Annette King 
: 30 percent of them are not found guilty. 
Hon Dr MICHAEL CULLEN 
: Yes 30 percent of them are not found guilty. That does not mean they are innocent of course; it means the Crown has not proven its case. 
But it is also very clear that sometimes people get it wrong. Sometimes people who should not be found guilty are found guilty. In the United States in particular a rather alarming number of people convicted of the most serious crime of all—murder—are subsequently cleared on the basis of forensic evidence. If they had been executed which is the law in most states in the United States the situation would have been particularly serious because it is rather hard to reverse an execution. It is a case of saying: “Sorry about that. We locked you up for 10 years which was bad enough but we’ve also actually topped you in the meantime so we can’t do very much about it at all.” 
We have to recognise that any of us in this room any of us in Parliament could find ourselves on a charge—not necessarily a serious criminal charge but even that is possible. Mistakes are made. Mistakes are made in the system. People are charged. If we have a system that does not provide bail at all then any one of us in this House is also exposed—seriously—to the risk of imprisonment perhaps unfortunately there is often quite a long time between charges being laid and the case actually coming to trial. People in New Zealand have made lots of money out of writing books about the injustices of the New Zealand criminal law system and people being wrongfully convicted. In some of those cases I am not always convinced by those books I might say but I will not go any further into those particular matters in case I commit an indiscretion—being a previous Attorney-General. 
There is a balance that always needs to be struck. The balance cannot be that we lock people up as soon as they are charged because that is to make assumptions that should not be made. Yes we have to somehow find better means of preventing crime. We are still putting far too little in the way of resources into trying to cut off crime at its roots. We need some very hard conversations in this country about what is needed in terms of the use of the power of the State in terms of early intervention and the power of State-supported community groups and other groups in terms of early intervention. I am not sure we now have that balance entirely right. 
But let us not rush off into rhetoric that somehow or other very minor changes of this sort will suddenly lead to a crime-free New Zealand. There was no past golden age when we had a sense of peace and community if I can quote Miss Katene nor was there a past golden age when there was no serious crime. Those ages have never been; they never were. We have had serious crime with us always and societies that have an extreme punitive approach do not have no serious crime at all. It is true that if we execute all criminals the rate of recidivism is quite low but beyond that nobody has found the perfect answer in these areas.