You are here:
NZLII >>
Databases >>
New Zealand Bill of Rights Act Reports >>
2004 >>
[2004] NZBORARp 2
Database Search
| Name Search
| Recent Documents
| Noteup
| LawCite
| Download
| Help
Criminal Procedure Bill (Inconsistent) (Section 26(2)) [2004] NZBORARp 2 (22 June 2004)
Last Updated: 5 January 2019
E.63
Report of the
ATTORNEY-GENERAL
under the New Zealand Bill of Rights Act 1990 on the Criminal Procedure
Bill
Presented to the House of Representatives pursuant
to Section 7 of the New Zealand Bill of Rights Act 1990 and Standing Order 264
of the Standing Orders of the House of Representatives
- I
have undertaken an examination of the Criminal Procedure Bill (PCO 5170/13)
(“the Bill”) for consistency with the New
Zealand Bill of Rights Act
1990 (“the Bill of Rights Act”). I conclude that the proposed new
sections 378B to 378D (Part
1, clause 7 of the Bill) of the Crimes Act 1961
appear to be inconsistent with the “double jeopardy” right contained
in s 26(2) of the Bill of Rights Act and these proposed new sections do not
appear to be justifiable in terms of s 5 of the Bill
of Rights Act.
- As
required by section 7 of the Bill of Rights Act and Standing Order 264, I draw
these inconsistencies to the attention of the House.
The Bill
- The
Bill reforms the law of criminal procedure in a number of respects, but the
major reforms concern (1) the double jeopardy rule;
(2) jury trial; (3) new
criminal disclosure rules; (4) provision for increased committal on the papers.
The Bill also contains a
number of miscellaneous
amendments.
The Bill of Rights issues
The rule against double jeopardy in s 26(2) the Bill of Rights Act
- Section
26(2) of the Bill of Rights Act provides:
“No one who has been
finally acquitted or convicted of, or pardoned for, an offence should be tried
or punished for it again.”
- It
affirms the rule against double jeopardy already given effect to in ss 357 to
359 Crimes Act 1961 (relating to pleas of previous
acquittal and previous
conviction).
- The
double jeopardy rule is of great significance and
importance.1 It is seen as a fundamental building block
of the criminal justice process and a basic safeguard of civil liberty in our
legal system.
The fundamental purpose of the double jeopardy rule is to protect
individuals against the excessive use of state power: the state,
with all its
resources and powers, should not be allowed to continually subject an individual
to repressive and repeated prosecutions
by the state. A citizen, once tried, is
entitled to the comfort of knowing that once acquitted of an offence that is the
end of the
matter. It also protects the legal system by conserving judicial and
prosecutorial resources and by reflecting the principle that
there must be a
degree of finality to the criminal justice process.
The proposed exceptions outlined
- The
Bill proposes two exceptions to the general prohibition on double jeopardy:
retrial of an acquitted person will be allowed where
(1) the acquittal was
obtained through a perversion of the criminal justice system by the acquitted
person (“tainted acquittal”
exception); or (2) the offence is a
serious one and fresh and compelling evidence emerges post-acquittal that
implicates the acquitted
person in the commission of the serious offence
(“fresh compelling evidence” exception).
- Double
Jeopardy and Prosecution Appeals UK Law Commission (LAWCOM No 267);
Acquittal Following Perversion of the Course of Justice, New Zealand Law
Commission (R 70) (2001)).
- The
proposals in the Bill to allow exceptions to the double jeopardy rule in respect
of tainted acquittals and fresh compelling evidence
are clearly a prima facie
infringement of s 26(2) the Bill of Rights Act.
Limits on s 26(2) Bill of Rights Act: general considerations
- While
the double jeopardy rule is of fundamental importance it is apparent that it is
not an absolute rule. Whether couched in terms
of “reopening” or
“rehearing” there is international recognition that in certain
circumstances it is not
necessarily an infringement of the rule to eventually be
retried for a crime one has been acquitted of. In that regard, s 26(2) of
the
Bill of Rights Act is based on art 14(7) of the International Covenant on Civil
and Political Rights (“ICCPR”). When
determining the appropriate
interpretation of art 14, the UN Human Rights Committee has found that most
State parties make a clear
distinction between a resumption of a trial justified
by exceptional circumstances and a re-trial prohibited pursuant to the principal
ne bis in idem as contained in art 14(7).2 The
double jeopardy rule found in art 4(2) of the Seventh Protocol to the European
Convention on Human Rights (“ECHR”)
provides that no one should be
liable to be tried or punished again for an offence for which they have already
been finally acquitted
or convicted. However, the same article goes on to
provide that that rule should not prevent the “reopening” of the
case
if there is “evidence or new or newly discovered facts, or if there
has been a fundamental defect in the previous proceedings,
which could affect
the outcome of the case.” When discussing art 4 ECHR, the UK Law
Commission observed that:3
Article 4(1)
prohibits the bringing of a second prosecution on the same facts. That
prohibition is, prima facie, absolute. The effect of Article 4(2),
however, is that a member State’s law may permit a case to be
‘reopened’,
but only on certain specified grounds. It does not
permit a new prosecution. Even reopening is permitted only on certain specified
grounds – namely that new evidence has been found, or that there was a
fundamental defect in the original proceedings. In any
other circumstances, the
reopening of the case is prohibited no less than would be the bringing of a
second case.
- Against
the fundamental purposes of the double jeopardy rule outlined above, one must
also consider the important objective of public
confidence in the criminal
justice system and the interests of the victim of offending. While most human
rights are necessarily focussed
on protecting the individual from State
excesses, the State, as representative of the public, also has an interest in
the conduct
of a fair hearing and the prevention of wrongful gain from offences
against the administration of justice.
Section 5 the Bill of Rights Act
- The
question which arises therefore is not whether the proposed exceptions to the
double jeopardy rule prima facie infringe s 26(2)
(clearly they do) but rather
whether they can be considered a justified limit on that right in terms of s 5
of the Bill of Rights
Act.
2 HRC General Comment 13
(21st session, 1984), para 19.
3 Above n1, page 34, paragraph 3.21
- Section
5 of the Bill of Rights Act states that:
“Subject to s 4 of
this Bill of Rights, the rights and freedoms contained in this Bill of Rights
may be subject only to such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.”
In essence, the inquiry is two-fold: First, whether the provision serves an
important and significant objective; and second, whether
there is a rational and
proportionate connection between that objective and the provision.
Proposed exception to double jeopardy rule: tainted acquittal
- The
proposed tainted acquittal exception amends the Crimes Act to allow a retrial to
be ordered where a person has been convicted
of an offence against the
administration of justice and that offence relates to the hearing of an earlier
criminal charge in respect
of which the person was acquitted (new s 378A(2)).
“Offences against the administration of justice” include such things
as s 101 (bribery of a judicial officer) and ss 108 and 109 (perjury). A retrial
requires High Court approval against stated criteria.
Finally the new exception
will only be available in respect of acquittal offences occurring after
the legislative amendments introducing the exception come into force (new s
378A(5)).
Does the proposed exception represent a rational and proportionate response to
that objective?
- The
key to this exception is that the acquittal was only obtained by an orchestrated
perversion of the trial from which the acquittal
emerged. In these circumstances
it is not a legitimate acquittal and is not deserving of the basic protection.
The process safeguards,
and the fact that the usual rules apply on any retrial
should one be authorised, satisfy me that the measure is a proportionate
response.
Proposed exception to double jeopardy rule: fresh compelling evidence
- I
turn now to the proposed exception to the rule against double jeopardy when
fresh compelling evidence is discovered after an acquittal.
As noted earlier,
for obvious reasons, I consider the proposal is a prima facie breach of s
26(2) of the Bill of Rights Act. The question is whether the proposal contained
in the Bill is justifiable in terms of
s 5 of the Bill of Rights Act.
- It
is important to note that the fresh compelling evidence proposal is
qualitatively different from the earlier exception concerning
tainted
acquittals. The present proposal relates to acquittals obtained after a proper
process and which were available decisions
on the evidence proffered. The task
of justifying an exception in these circumstances is more onerous than in the
case of tainted
acquittals as the exception goes to the core of the purposes
informing s 26(2). I note in passing that the Law Commission in its
paper on
double jeopardy in tainted acquittal cases doubted that a fresh compelling
evidence exception could be justified.4 This conclusion
differs from the conclusion reached by the UK Law Commission which considered
that an exception to the double jeopardy
rule in cases of fresh compelling
evidence could be sustained in respect of a narrow range of offences.
4 Above para 1.
- The
proposed fresh compelling evidence exception to the double jeopardy rule has the
following elements:
- 17.1 The
exception to the double jeopardy rule will only allow an accused person to be
tried a second time for specified serious offences
(defined as being an offence
punishable by a term of imprisonment of 14 years or more) (new s 378B(1)) and
only if compelling new
evidence of that person’s guilt is discovered
subsequent to the acquittal.
- 17.2 The
evidence will only be considered “new” if it was not known at the
time of the first trial, and could not reasonably
have been discovered with the
exercise of due diligence (new s 378B(2)).
- 17.3 The
evidence will be considered “compelling” if it is a reliable and
substantial addition to the evidence heard at
the first trial, and with a high
degree of probability implicates the acquitted person in the commission of the
offence (new s 378B(3)).
- 17.4 Police
will require the Solicitor-General’s consent to reinvestigate a previously
tried case (new s 378C(2)), although
there is provision for urgent investigative
action without consent in exceptional cases (new s 378C(6)).
- 17.5 The
Solicitor-General must be satisfied that fresh compelling evidence of guilt
exists and that a retrial would be in the public
interest before applying to the
Court of Appeal to reopen the case (new s 378D(4)).
- 17.6 The Court
of Appeal may only grant leave for retrial if it in turn is independently
satisfied there is compelling new evidence
of guilt and that a retrial would be
in the interests of justice (new s 378D(1)).
- 17.7 If the
person is again acquitted there can be no further application for retrial (new s
378D(5)(c)).
- 17.8 No retrial
application can be granted by the Court of Appeal if the acquittal occurred
prior to the commencement of the proposed
legislation (new s 378D(6)).
- 17.9 There is a
discretion to impose reporting restrictions on all matters relating to Crown
retrial applications where the interests
of justice so require (new s
378E).
Is the prima facie breach of s 26(2) justified?
- Given
I consider the proposal is a prima facie breach of s 26(2), the question
therefore becomes whether it is a reasonably justified limit in terms of s 5.
Given the high public
importance of the rule I consider any exception to the
rule can only be justified under s 5 in rare and limited cases.
- The
extent of the significance and importance of the double jeopardy rule has
already been outlined above.
- Turning
now to the importance and significance of the objective behind the exception,
the purpose of the exception would appear to
be the recognition of
the
greater public interest in obtaining a conviction when an
individual has broken one of society’s most fundamental laws by committing
a serious offence against another. The state, in attempting to rectify an
acquittal on a charge for such an offence that may well
be wrong in fact, is
recognising the public interest in notions of “justice” for a victim
and society and confidence
in the judicial system. I am of the view that an
objective of this type might be considered important or significant in respect
of
certain types of the most serious offending, such as murder. Once however the
range of offences to which the exception applies is
widened beyond the most
serious then one must entertain serious doubts about the importance and
significance of the objective, because
the more qualifying offences to which the
“exception” applies, the less meaningful the protection given by s
26(2) will
become. In short, the wider the net is cast, the more the core values
of s 26(2) are undermined.
Is the proposal a proportionate response?
- Assuming
there to be a rational connection between the ability to apply for a retrial and
the objective outlined above, the key issue
is whether the proposal is a
proportionate limit on the s 26(2) right. Factors put in favour of the proposal
are:
- 21.1 Retrial
can only take place if there is new evidence (ie there can be no retrial where
the case involves a simple re-run of the
first trial).
- 21.2 The
proposal applies to “serious offences” (ie those offences punishable
by 14 years imprisonment or more) only;
- 21.3 The
threshold is pitched at a high level in that the evidence must be
“new” and “compelling”;
- 21.4 Court
sanction is necessary before a case is to be retried;
- 21.5 The
Solicitor-General must be satisfied that the necessary threshold inquiry test is
met before seeking the leave of the Court;
- 21.6 There can
be only one retrial;
- 21.7 The United
Kingdom has recently passed broadly similar
legislation,5 and other jurisdictions such as Australia
are currently considering equivalent
proposals.6
- However,
in my view the Bill must be regarded as failing the proportionality test. In
particular, the proportionality of the proposal
(i.e. the reasonableness of the
extent to which the proposal erodes the double jeopardy right) is undermined by
the significant number
of offences, or criminal charges, which are captured by
the proposal. A review of our current offence provisions indicates that the
14
years plus qualification captures more than 40 offences in the statute book.
This can be contrasted with the approach of the United
Kingdom legislation,
which contains a
5 Criminal Justice Act 2004, Part 10.
6 MCCOC, Discussion Paper on Issue Estopel,
Double Jeopardy and Prosecution Appeals against Acquittals
(November 2003).
list of offences that is significantly more limited in terms of number and
type of offence.7
- The
significance of the 14 year plus approach adopted in the Bill should not be
underestimated. There are three principal objections:
- 23.1 First, the
circumstances of many of the charges are unlikely to warrant the 14 year
imprisonment penalty if the accused is found
guilty. Traditionally, many New
Zealand offence provisions have been drafted with the expectation that the
seriousness of a particular
crime would be reflected in the sentence given by
the court upon conviction. Therefore, it is difficult with respect to some of
the qualifying offences, to sustain an argument that the circumstances of the
majority of charges under the relevant offence are
usually serious enough to
warrant imposition of a maximum penalty at the top end of the allowable maximum
of 14 years imprisonment
(e.g. blackmail). However, the proposal will result in
all persons who were accused and acquitted of these charges, regardless of
the
seriousness of the relevant circumstances surrounding the charge, having to live
with the possibility of continued police investigation,
renewed prosecution and
other onerous consequences of exposure to the criminal justice system.
- 23.2 Second,
the Bill’s chosen method of identifying qualifying offences (viz is the
maximum penalty for the offence one of
14 years imprisonment or more?) will
result in the automatic capture of any other future offences that may be enacted
with a maximum
penalty of 14 years or more imprisonment. Further, by the simple
expedient of lifting the maximum penalty of existing offences up
to 14 years
Parliament can extend the reach of the “exception” to the double
jeopardy rule to many more offences than
are currently captured. By contrast,
the use of a specific schedule of applicable offences (as in the UK legislation)
would require
officials and Parliament to specifically consider whether any
future offences should be caught by the fresh compelling evidence exception
to
the fundamental double jeopardy right.
- 23.3 Third, I
am not convinced that all of the offences that would currently qualify for the
exception are of a type that could justify
departure from the double jeopardy
principle. As noted above, the offending which could justify departure from the
principle must
be of the most serious type. I are not convinced that blackmail,
aggravated burglary and so on fall clearly enough into such a
category.
- On
this last point, it should be noted that the United Kingdom Joint
(Parliamentary) Committee on Human Rights concluded (when considering
the human
rights compatibility of the proposed fresh compelling evidence exception to
double jeopardy contained in the Criminal Justice
Bill) that “the range of
offences to which an exception to the double jeopardy principle might apply is
a
7 See Schedule to the Criminal Justice Act
2004.
matter for political judgement, not a matter of human
rights”.8 I do not accept this view, but do note
it for completeness.
- I
consider that a specific and limited schedule of offences must be regarded as a
minimum requirement of any scheme that makes an
exception to double jeopardy for
fresh compelling evidence cases. I consider that this adds to the acceptability
of the United Kingdom
legislation and I also note that recent policy
recommendations on the proposed Australian legislation have favoured a limited
specified
schedule of applicable offences to ensure that removal of this
fundamental right continues to be an exception rather than the norm.
- In
conclusion, it may have been possible to achieve a reasonable limitation of the
double jeopardy right by reference to a specific
and narrow list of offences,
where the predominant nature of the captured offending is serious enough to
warrant the erosion of this
fundamental right. However, I do not consider that
the proposal in the Bill which defines “serious offences” by
reference
to maximum penalties can be considered to be a reasonable and
proportionate limit of the double jeopardy right in terms of s 5 of
the Bill of
Rights Act. Therefore, I consider that new sections 378B to 378D in cl 7 of the
Bill appear to be inconsistent with s
26(2) of the Bill of Rights Act and are
incapable of justification under s 5.
Hon Margaret Wilson
Attorney-General
- Joint
Committee on Human Rights – Criminal Justice Bill (Second Report of
Session 2002-03), HL Paper 40, HC 374, para 46.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/other/NZBORARp/2004/2.html