Borrows Chester: Courts (Remote Participation) Bill — Second Reading 
Text is incorporated into the Bound Volume 
Borrows Chester: Courts (Remote Participation) Bill — Second Reading 
[Sitting date: 29 June 2010. Volume:664;Page:12270. Text is incorporated into the Bound Volume.] 
CHESTER BORROWS (National—Whanganui) 
: 
 I rise in support of the Courts (Remote Participation) Bill. I acknowledge the work of the Justice and Electoral Committee as previous speakers have done. It is important to note a couple of points made not only by the Minister of Justice but also by the Hon David Parker in his first speech on this bill. So I too acknowledge the substantial ground within the bill that we agreed upon and I acknowledge the real concerns that Labour members have expressed in their minority report. Later I will articulate the reasons why the Government has come to the conclusion to proceed with the bill in the way it has. 
The first point to note is that in civil proceedings there is no real argument. We should use audiovisual links for appearances by witnesses as appropriate. That is something that has been conceded there has been a movement towards that for some time and it has been flagged. 
The second point is that in procedural hearings—matters such as bail applications call-overs for trial and maybe name suppression applications—where no evidence is called there is again agreement across the House that an audiovisual link is an appropriate medium for a defendant to be able to appear in the court. That is because the defendant is represented the arguments are clear and there is no contest as to the evidence that is being given or if there is it is being well canvassed. 
Then there is the point the Minister made. He said there is a safety issue. Lastly I guess there is the issue of the cost to the taxpayer and that is no less an issue especially in the matter quoted by the Minister of the transportation of a particular prisoner from Paremoremo to the Wellington High Court for two procedural call-overs. But the fact is that audiovisual links are used in those procedural matters right around the world in all sorts of jurisdictions sometimes with consent and sometimes at the discretion of the judge. Nevertheless all sides of the House agreed that that was appropriate. 
The sticking point really was on substantive hearings which are hearings where evidence is called and the removal of the right of an accused to be physically present in the courtroom and a move towards giving judges the discretion to overrule a lack of consent and insist that a trial be heard via the use of an audiovisual link. I think that the thrust of the argument put forward by the previous speaker is that justice must not only be done but be seen to be done and the ability to see justice being done should not be limited by wherever the camera casts itself. 
The point that David Parker made in respect of where the cameras are pointed during the course of the trial is quite valid. In considering that we have to think about the demographics of people who appear before the court as accused persons. By far the majority of them struggle with literacy struggle with understanding struggle with the language used within a courtroom and struggle with an inability to communicate with their counsel in legal terms about the ingredients of a crime. In many instances they struggle with engagement with the legal system. We know that the people who end up going to jail are overrepresented in those areas as well as in areas such as drug and alcohol dependency. Somewhere between 61 and 65 percent of them have mental health issues. We can see where Opposition members are coming from in respect of the perceived unfairness of taking this step which they deem to be a step too far. 
The point was also well made that when we look around the world we see that no other jurisdiction is going where we are going. At the same time when we look at the criteria that are held within clauses 5 6 and 9 we see that they are quite stringent. Clause 5 lists the general criteria for allowing use of audiovisual links. The decision maker—the judge—has to consider the nature of the proceedings the availability and quality of the technology and the potential impact of the use of the technology on the effective maintenance of the rights of the parties to the proceedings including the right to assess the credibility of witnesses and the level of contact with other participants. We can understand that that is a good general parameter of the considerations. 
Clause 6 deals specifically with criminal proceedings. The judge has to consider not only the criteria I have just articulated from cause 5 but also the ability of the defendant specifically—and this is exactly the concern the Opposition has—to comprehend proceedings to participate effectively in the conduct of his or her defence to consult and instruct counsel privately to access relevant evidence to examine the witnesses for the prosecution and to assess the level of contact the defendant has with other participants. 
We can imagine the difficulties for a person who as we have already accepted may not have the ability to engage with counsel and instruct them or to pass on the nuances that he or she is picking up from the evidence given by a witness. We can imagine the difficulty for the person in terms of communicating all that during the course of the trial while the evidence is being given—for instance in a cross-examination sequence of questions. A judicial officer or registrar must consider those criteria as well as how well the defendant will be able to communicate—the defendant may wish to communicate inconsistencies or some “yes buts” to counsel—and any adverse impression that may arise through the defendant or any other participant appearing by means of an audiovisual link. 
As one looks through that list of criteria one would hope—and the Government certainly believes—that a decision maker takes all those criteria into account in making decisions about whether someone will appear via an audiovisual link. The decision maker has to climb over a very high hurdle to make that decision. Then clause 9 refers specifically to the use of audiovisual links in criminal substantive matters. 
I have referred to the criteria for the use of audiovisual links in procedural matters so those two clauses clauses 6 and 9 are two extra-significant hurdles that the decision maker has to consider before an order is made in respect of the use of an audiovisual link for criminal substantive matters. The decision makers consider the previous criteria but they also take into account whether the parties to the proceedings consent. A judge thinking on that has to consider those very high hurdles before making a decision. It is important to note that when some members of the Justice and Electoral Committee quizzed officials in respect of how they came to this point they said it was from the mode of evidence approach whereas the concerns of the committee were really around an access to justice approach. The majority of the committee felt that the officials would have come to it from that access to justice approach. 
I had a conversation today with probably one of our leading counsel in this area and in human rights matters and he made the point that the law is quite incremental and a lot of the public do not understand quite how that happens. A recent decision has been made whereby someone who made a complaint to the police and gave an interview alleging sexual abuse does not have to appear before the court to give evidence-in-chief at all or be available for cross-examination. That is another step forward that has happened through the common law process. 
So with the implementation of this bill we can conceive of a situation however remote it may be—and this is the Opposition’s point—in which a defendant may be charged with a crime the complainant is not available for cross-examination and the defendant is not there either. It is a significant step that has been taken. I can say that I am convinced that the work of the officials in the drafting of the bill has put in very very high criteria. The Government does not come to this position lightly. It is aware of the transitions and improvements to technology and the ability over time for appearances by audiovisual links to significantly enhance the participation of an accused person in a matter like this.