Graham Kennedy: Courts (Remote Participation) Bill — Second Reading 
Text is incorporated into the Bound Volume 
Graham Kennedy: Courts (Remote Participation) Bill — Second Reading 
[Sitting date: 29 June 2010. Volume:664;Page:12274. Text is incorporated into the Bound Volume.] 
Dr KENNEDY GRAHAM (Green) 
: 
 I must say that it is with considerable sadness that I rise on behalf of the Green Party to address the Courts (Remote Participation) Bill at least in the sense of the way things have developed in the last few months. We initially entered this exercise with the intent of supporting the bill. We certainly supported it at its first reading and its referral to the Justice and Electoral Committee and as has been established by both Government members and Labour Party Opposition MPs that constructive spirit worked its way through pretty much the whole of the select committee process. The problem that arose was that it became apparent that there is this one what I would call fatal defect in the bill. It is a very narrow one but it strikes very deeply. If it is only 1 percent of the text of a bill that a party finds objectionable it would have to go very deep for that party to oppose it. I put it to the Minister and to Government members that this is a case in point. I do so in sadness but I also do so in hope because I do not believe it is too late to change one minor but fundamentally important point. 
We are not talking about civil trials. We are not talking about the procedural dimension of criminal trials. We are talking simply about the substantive trial of a criminal case and in that context we are talking only about the rights of a defendant. We are not—at least the Green Party is not—talking about whether witnesses should or should not submit evidence via audiovisual links. We are prepared to see witnesses in substantive criminal trials submit evidence via audiovisual links. What we are not prepared to see and what we suggest is a fundamental tenet of common law systems in New Zealand the UK Australia Canada and the United States is the right of the defendant to be physically present in the substantive hearing of a criminal case. That is an absolute principle that cannot be measured in terms of dollars saved. 
I reach for the various authorities on criminal law and I look up “in absentia”. Under the phrase “In absentia in common law legal systems” I see the statement “conviction of a person in absentia that is in a trial in which they are not present to answer the charges is held to be a violation of natural justice. Specifically it violates the second principle of natural justice audialterampartem.” By contrast in some civil law legal systems it is permitted to have trial in absentia. Various cases are cited in the common law system. I understand the Minister cited New South Wales Victoria and the UK. I do not think that that is a fundamental tenet of the judicial system the criminal law system in those countries. I look to the United States to the constitution and cases in 1844 reiterated in 2004 where the principle of natural justice is held to be inviolate when it comes to substantive hearings of a criminal nature. 
I think we need to be very careful how we proceed from here because I see from a release on 3 June that the Government has already released $2 million to roll out the audiovisual link system throughout the courts. In introducing the second reading the Minister was drawing the distinction and it is an interesting distinction between effective participation and physical participation. I would respond that the only effective participation in a substantive criminal trial is physical participation. That is an absolute principle from which one cannot derogate. We have to understand that in almost every case the defendant is in a weak position. If we cede the absolute nature of that principle we have essentially taken away the fundamental protection that the defendant will have in such a trial. We are farming out that protection to a decision by the judge or the registrar. 
To what end are we doing this? I ask the minister what the rationale is for ceding the absolute principle of the right of the defendant to be present in a criminal trial. I look to the Minister to reply in the fullness of time. What is it that has changed so seismically in our system that there is a justification—an explicit transparent justification—to do that? What are the reasons? We are told that it is “improved efficiency cost savings increased safety increased access to justice and improved quality of evidence”. Are cost savings what will take away the absolute right of the defendant to be physically present? I ask what price what dollar figure we place on that. Is it $100000 for one miscarriage of justice per year discounted to $150000 for two? How much are we going to save and how do we look around and tell our citizens and indeed our children that it was worth it to take away this right because we saved a few hundred thousand dollars in Vote Justice? 
Let us put it to the test in the legislature or indeed in the executive. Let us suggest that Cabinet meet by audiovisual link for a 6-month period. The Minister of Justice and the Prime Minister would not be present; others could be. The Minister of Justice can participate in Cabinet decisions including his own portfolio decision-making by audiovisual link from his electorate. There is no need for him to be physically present—it will save costs! Let us see what happens with the body language when he is not present. We have heard suggestions as to what is and is not picked up from one angle of the camera. To suggest that a defendant can completely comprehend what is going on in his or her murder trial by watching from 100 kilometres distance from one camera is ludicrous—is the judge winking? I hope this can be rectified in the Committee stage. 
The Green Party is not against the advance of technology in introducing audiovisual links. We support the bill in its thrust with the single narrow exception of the right of the defendant to be physically present in the substantive hearing of a criminal trial. It will not take much for the Government to cede a point on this and I hope that pride does not get in the way. We are talking about striking at the fundamental heart of our criminal law system. If that is not done then the Green Party will reluctantly oppose the bill on that sole point alone. As a signal of our intent we will oppose the bill on this second reading. In the event it is voted through into the Committee of the whole House we shall work constructively to see whether we can clarify that one point so that we can resume a positive vote for it. Thank you.