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New Zealand Human Rights Commission Submissions |
Last Updated: 26 May 2015
Submission by the
Human Rights Commission
CRIMINAL PROCEDURE (REFORM AND MODERNISATION) BILL
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Justice and Electoral Committee
18 February
2011
Michael White
Legal and Policy Analyst
Phone 04 471 6752
Sylvia Bell
Principle Legal and Policy
Analyst
Phone 09 306 2650
1.1 This submission on the Criminal Procedure (Reform and Modernisation) Bill (the Bill) is made by the Human Rights Commission (the Commission).
1.2 The Commission’s mandate derives from the Human Rights Act 1993 (HRA).The long title to the HRA describes the Act’s purpose as the provision of “better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights”.
1.3 To give effect to the long title the Commission has a number of functions. The primary functions in section 5(1) include advocating and promoting respect for, and an understanding of, human rights in New Zealand society. Section 5 (2) lists more explicit ways in which the primary functions can be realised and includes section 5(2)(k) which allows the Commission to report to the Prime Minister on the “implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights”[1].
2.1 The Commission supports the introduction of legislation that improves the delivery and conduct of criminal prosecutions without impinging on elements of essential fairness. We also recognise that legislation needs to be flexible enough to ensure that advances in information technology are available to the Courts. We are, however, apprehensive about the Bill’s potential to undermine the current adversarial system, and protections that are an inherent part of a democratic society.
2.2 The Commission has concerns about the human rights implications of this Bill both in relation to the process and substance. We are particularly concerned about:
➢ the way in which the Criminal Procedure (Reform and Modernisation) Bill amends the New Zealand Bill of Rights Act 1990 (NZBoRA), a statute that is regarded as having a quasi-constitutional status[2]
➢ the absence of informed engagement in the public debate about the fundamental existing right to elect trial by jury that has been part of New Zealand’s justice system since the 1840s
2.3 Amending the right to elect trial by jury so that it only applies to offences punishable by three years’ imprisonment or more together with the cumulative effect of the other proposed changes – such as the emphasis on pre-trial procedures - signals a shift from an adversarial system to a more inquisitorial process. While an inquisitorial system may be appropriate in some situations – for example, we can see the logic of such an approach in the mental health or tenancy context – it is nevertheless a radical change from our present system of justice.
2.4 The Commission has consistently argued for a proper period of consultation where significant legislative reform is proposed and for deliberate and informed dialogue both before and during the select committee stage. As some of the changes brought about by the Bill will impact on the NZBoRA and constitutional rights, they should not be progressed further without broader public consultation (similar to that which preceded the changes to the Electoral Finance legislation and the Police Act) or in the context of the constitutional review.
2.5 The Commission’s submission addresses the following issues:
v. Reverse onus of proof
vi. Identification of issues
vii. Double jeopardy
3.1 New Zealand ratified the International Covenant on Political and Civil Rights (ICCPR) in 1978. The Human Rights Commission Act 1977 (the forerunner to the present HRA 1993) was introduced in anticipation of ratification of the Convention, the long title referring to the advancement of human rights in New Zealand in general accordance with the United Nations International Covenants on Human Rights[3]. In 1990 the NZBoRA was enacted to affirm the rights in the ICCPR and ensure they were available domestically. Together the NZBoRA and the HRA provide a strong indication that New Zealand respects its international commitments and will only derogate from the rights they protect in extreme circumstances.
3.2 While the Commission recognises that the NZBoRA is not entrenched legislation, it is designed to protect fundamental rights and has acquired a quasi-constitutional status as a result. Unless there is a very pressing reason for doing so, such legislation should not be amended lightly. As the President of the New Zealand Law Society observed[4],
Lawyers, politicians and the public need to ask whether the Bill of Rights is any type of fundamental foundation in New Zealand or not ... If it’s not, if it’s just something you can chop and change whenever it suits you, for fiscal imperatives or otherwise ...let’s have that out front. What’s our philosophical position ... is the Bill of Rights a good thing or not?
3.3 Changing the NZBoRA in this way effectively dilutes New Zealand’s human rights guarantees to its citizens. Guarantees of this nature are limited in New Zealand and the Commission considers that those we do have should not be changed without public consultation.
3.4 The government has recently announced the establishment of a Constitutional Review. The terms of reference include consideration of whether New Zealand should have a written constitution and the position of NZBoRA in New Zealand’s statutory scheme. The Commission considers that the status of the NZBoRA is more appropriately considered in this context. It is both premature and inappropriate to change the NZBoRA at this point.
4.1 One of the most controversial changes in the Bill relates to the right of New Zealanders under s24(e) of NZBoRA that states:
Everyone who is charged with an offence shall have the right, except in a case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months.
4.2 Clause 48(1) states that:
A defendant who is charged with a category 3 offence, and who pleads not guilty to that offence, may elect to be tried by a jury.
Category three offences are those punishable by at least 3 years imprisonment. This therefore substantially increases the threshold at which one can elect trial by jury.
4.3 The Attorney-General recognised that the amendment to change the threshold at which a person could elect trial by jury was inconsistent with section 24(e) but considered that it could be justified as it would not put New Zealand in breach of its obligations internationally or place defendants at any comparative disadvantage to those in comparable jurisdictions[5].
4.4 The Commission’s concern is both with the way in which the change is to be effected - as it has the potential to act as a precedent for making changes to other more substantial rights in an ad hoc way to NZBoRA – as well as with the substance of the change which deprives people charged with a range of offences from the right to the “benefit” of a trial by jury.
4.5 With respect to other changes proposed in the Bill, the Attorney-General considers that they are inconsistent with some of the rights affirmed by the NZBoRA and that the limitations cannot be justified in a free and democratic society. The rights engaged include:
4.6 In a general sense, all three deal with the rights of citizens who find themselves cast in the role of defendants. We agree with the Attorney-General that the abrogation of certain rights proposed in the Bill both cannot be justified in terms of section 5 of the NZBoRA and contravene New Zealand’s international commitments and we address them in greater detail later in our submission.
5.1 The right to trial by jury has been central to New Zealand’s adversarial system since at least 1842. The Commission accepts that not every case justifies a jury trial. The overwhelming majority of cases will have potentially minor consequences and will be able to be disposed of by a judge without a jury.
5.2 However, in New Zealand whenever a person can be deprived of their liberty for more than three months, a citizen has traditionally had the right to be tried by a jury - not just a single judge sitting alone - if he or she believes that the trial is more likely to be fair. Limiting the right to trial by jury is therefore potentially one of the most significant changes in the Bill. As Lord Denning commented in Ward v James[7]:
It [trial by jury] has been the bulwark of our liberties for too long for any of us to seek to alter it. Whenever a man is on trial for serious crime or when in a civil case a man’s honour or integrity is at stake ... then trial by jury has no equal.
5.3 The jury system is based on a healthy scepticism of state power and serves as a safeguard to ensure that the criminal law is applied fairly and in ways consistent with community values. It is one of the primary safeguards of trial fairness and has traditionally been important in protecting citizens from oppressive or politically motivated prosecutions[8]. It is able to perform this core function because a jury is not required to provide reasons for its decisions and is not constrained by legal process in the same way as a judge can be.
5.4 In such circumstances we believe it is incumbent on legislators to take their lead from the community before opting to interfere with such a fundamental right. Trial by jury when charged with an offence carrying imprisonment of more than three months was, after all, not a right created by the NZBoRA. The NZBoRA simply re-affirmed it[9]. In the absence of adequate public consultation and informed discussion on such an important issue it cannot be said with any confidence that there is community support for what is being proposed.
5.5 The constitutional importance of trial by jury in the criminal process was recently considered by the Supreme Court in Siemer v Solicitor-General[10], Elias CJ and McGrath J noting that:
The primary and most important function of the jury in a criminal trial is to determine the relevant facts of a case and to apply the law to reach a verdict of guilty or not guilty. In exercising that function jurors bring a diverse range of perspectives, personal experiences and knowledge to bear in individual cases which judges may lack. As fact finders, jurors determine which of the admissible evidence presented at trial is to be believed and acted upon. Juries ultimately decide whether the facts fit within a particular legal definition, according to community standards. In this way they reflect the attitude of the community in their determination of guilt or innocence.
The right to trial by jury is also generally seen as providing a safeguard against the arbitrary or oppressive enforcement of the law by the government. It is a common perception that when jurors perceive that a prosecution has these characteristics they are likely to acquit. The same point is made about trials where a law sought to be applied itself may be thought to be arbitrary or oppressive by a jury. For these reasons the jury is seen as standing between the accused and the state in a way that judges, who are sworn to apply the law, are not always able to do.
5.6 The Commission’s position on reducing entitlement to trial by jury is not a criticism of the calibre or intellect of judges themselves but simply reflects the fact that twelve commonplace minds may reach a sounder solution than two or three brilliant ones.[11] Juries have by their very nature brought a plurality in their composition to the judicial decision-making function and therefore represent a much greater reflection of society and experience of the community of which the courts are part. In New Zealand, the lack of diversity of judges and gender representation (particularly in the higher courts) in the judiciary continues to be debated domestically and internationally.[12] The proposed change would reduce the diversity that juries bring to the criminal process.
5.7 The Regulatory Impact Statement considers the benefits of raising the jury threshold alongside other procedural changes such as the re-categorisation of offences. However, the extent to which raising the jury threshold alone will increase efficiency and decrease costs remains unclear. A 2009 joint Ministry of Justice and Law Commission paper estimated that raising the threshold to 3 years would result in 184 fewer trials by jury. These trials will, of course, still take place before a Judge alone. The cost savings claimed for the Bill are cumulative, and aggregated over a ten year time frame. It is not evident what actual cost savings can be attributed simply to raising the jury threshold. The Commission therefore believes there is no compelling evidence on cost grounds for tampering with the jury system.
5.8 John Rawls, the author of A Theory of Justice, argues that social arrangements are to be evaluated from the stand point of the worst off (here, the defendant)[13]. This is similar to a human rights perspective which promotes the concerns of the most vulnerable. Different views about the appropriateness of jury trial for minor offences will reflect differences about fundamental moral conceptions. The term of imprisonment is arguably irrelevant – a three month term may be as devastating for some defendants as one of several years is for others. It follows that the only valid reason for changing the threshold would be if the cost of such trials demonstrably outweighs their benefit. In the absence of any definitive view on this, we suggest that the change is premature.
6.1 Section 25 (e) of the BORA guarantees a “right to be present” at trial and to present a defence. It reflects Article 14(3)(a) of the ICCPR (the right “to be tried in his presence”).
6.2 International human rights law emphasises the importance of a defendant’s right to be physically present and participate in his or her trial. So-called trials in absentia are contemplated only in exceptional circumstances or where there has been an explicit, unequivocal waiver of the right to be present. (Parliament only recently adopted this approach when debating the Courts (Remote Participation) Act 2010). The Human Rights Committee (which provides the most definitive legal interpretation of the ICCPR) has said that, in the exceptional circumstances where a trial in the absence of the defendant is permissible, strict observance of the rights of the defence is all the more necessary[14].
6.3 The Bill reaffirms the right of the person charged to be present at the
hearing but recognises an exception where the defendant
interrupts the hearing
to such an extent that it is impracticable to continue in their presence: clause
124. In addition, it provides
that where a defendant who has pleaded not guilty
to a category 2 or 3 offence does not appear for trial but the prosecutor is
ready
to proceed, the Court:
Clause 126 also provides a broad judicial discretion
for a hearing to proceed if the defendant does not appear under certain
circumstances.
6.4 As a general principle the defendant’s right to be present is
recognised in New Zealand law unless the defendant waives
it or consciously
refrains from exercising it. Both the Crimes Act
1961[15]and the Summary Proceedings
Act 1957[16] also authorise the
continuance of a trial in the absence of the defendant where their behaviour
renders their continued presence
impracticable.
6.5 However, it is also recognised that the discretion must be exercised with the utmost caution, the overriding concern being fairness to the defendant. In R v Jones[17], the House of Lords stated that:
[I]t was generally desirable that a defendant should be represented even if he had voluntarily absconded, since that would provide a valuable safeguard against the possibility of error and oversight.
6.6 Recognition of the right includes provision of a remedy for anybody who
is convicted in their absence and who can prove that their
failure to appear was
not deliberate. Under international human rights law ideally this should involve
an opportunity for a fresh
determination of the merits of the case in the
presence of the accused[18]. It is
not enough for there simply to be an appeal to decide whether the procedural
conditions necessary for a trial in absentia to take place were met.
Provisions which engage, but do not limit, the right to be present
6.7 Although clause 126 infringes a defendant’s right to be present at the trial, the discretion to continue in the defendant’s absence only applies to category 1 offences and in such cases judges will not be under any constraint from exercising it in a way that is consistent with the right set out in section 25(e) NZBoRA.
Provisions which limit the right to be present
6.8 Clauses 124 and 128 prima facie limit the right to be present. Under Clause 124 a trial can proceed in the defendant’s absence if the defendant is so disruptive that he or she effectively undermines the possibility of the trial being able to continue. The Commission agrees with the Attorney-General that continuing in the defendant’s absence could be justified in this case, if the option of allowing them to return (and not continue the disruptive behaviour) is left open.
6.9 In relation to clause 128, however, the power to proceed in the
defendant’s absence is qualified in a number of ways. The
judge may not
continue if it would be contrary to the interests of justice to do so; the trial
may continue without the defendant
if their lawyer is able to continue
representing them in their absence; the defendant cannot be sentenced in their
absence if imprisonment
is a possibility; and there must be a remedy by way of a
right to apply for a re-trial, as well as the usual right of appeal. The
Attorney-General considers that clause 128 cannot satisfy the section 5 test
(that is, the infringement of the right cannot be demonstrably
justified in a
free and democratic society). The Commission agrees.
6.10 The test for deciding whether a measure meets the section 5 test was set
out by the Supreme Court in R v
Hansen[19]. Namely, whether the
limitation serves a significant and important objective; is rationally connected
to the objective; impairs the
right no more than is reasonably necessary to
achieve its purpose; and is proportionate to the importance of the objective
sought.
6.11 The Attorney-General notes that the qualifications placed on the court and the nature of the remedy as outlined in clause 131 do not limit the right “no more than is reasonably necessary” to achieve the objective and therefore the limitation cannot be justified. The Commission agrees and recommends amending clause 128 to allow a simple judicial discretion to proceed; or require section 25(e) BORA to be a mandatory consideration in exercising the discretion.
7.1 The right to be presumed innocent until proved guilty is a fundamental tenet of our criminal justice system. As Lord Bingham of Cornhill observed in McIntosh v Lord Advocat[20]:
... the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to public ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book ... Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system
7.2 Under section 25(c) of the NZBoRA everyone charged with an offence has “the right to be presumed innocent until proved guilty according to law”. While the right can be limited in some situations the Supreme Court in Hansen held that such situations will not be a common occurrence[21]. In Hansen the majority held that although the control of illegal drugs was a significant objective the fact that the reverse onus was triggered by possession of an arbitrary amount, it was not rationally connected with the objective and so could not be justified in a free and democratic society.
7.3 Courts have reached the same conclusion in other countries. For example, in Australia the Victorian Court of Appeal in R v Momcilovic[22] found that a reverse onus of proof provision infringed the right to the presumption of innocence that could not be cured by section 32 of the Victorian Charter – the requirement that an interpretation be adopted that least infringes the statutory right[23] - or be justified by section 7 (which is effectively the same as section 5 of the NZBoRA). The Court went so far as to hold that the reverse onus was “not so much an infringement of the presumption of innocence as a wholesale subversion of it”.
7.4 The reversal of the onus of proof and its retention in New Zealand has also exercised the Human Rights Committee of the UN with the Committee recommending as recently as last year, that changes should be made to legislation such as the Misuse of Drugs Act 1975 to ensure compatibility with articles 9 and 14 of the ICCPR and the right to be presumed innocent[24].
7.5 The Commission welcomes the repeal of section 67(8) of the Summary Proceedings Act 1957 to remove the reverse onus of proof from a wide variety of summary offences. However, the Bill replaces section 67(8) with specific provisions in twelve statutes which will require a defendant to establish an exception, exemption, proviso, excuse or qualification. The Attorney-General has examined these exceptions in some detail and concluded that most are justified but that two are not[25].
7.6 Although the Commission has called for the withdrawal of a reverse onus
of proof in earlier submissions[26],
it considers that most of the exceptions proposed in this
Bill[27] satisfy the requirements of
section 5. We do, however, suggest removing the reverse onus requirement in
relation to the two provisions
that the Attorney-General has identified as
unable to be justified.
8.1 Under the current law, the prosecution or the defendant may admit any fact so that it does not need to be proved at a later hearing or trial[28]. The Criminal Disclosure Act 2008 requires the prosecution to disclose all relevant information to the defence unless there is good reason to withhold it. It also imposes some limited requirements on the defence to disclose:
Currently there are no legislative requirements on the defence to identify the issues in dispute although this occurs voluntarily in some cases[29]. The element of ‘surprise’ that the defence currently enjoys may be seen, at least in part, as contributing towards an ‘equality of arms’, given the otherwise overwhelming resources available to the prosecution.
8.2 Clause 64 of the Bill imposes a requirement on a defendant to give notice before the trial of –
(a) any particular elements of the offence that the defendant contends cannot be proved; and
(b) any particular defence, justification, exception, exemption, proviso, or excuse on which the defendant intends to rely.
This seeks to abolish the long-standing requirement that the burden is on the Crown to prove each of the essential elements of the charge[s] it is bringing.
8.3 Failure to adequately notify the issues in dispute may result in an inference of guilt if it is proper to do so. In summing up the judge must instruct the jury that it may draw an inference from the failure to adequately identify issues that appear to be proper in the circumstances, but not find the defendant guilty of an offence solely on the basis of such an inference.
8.4 The Bill includes a number of further safeguards:
8.5 Clearly, failing to identify issues that are not disclosed could be raised in the trial by the prosecutor. It follows that inviting the jury to draw an inference from such a failure engages the fair trial rights set out in section 25(a) NZBoRA. In addition, the possibility of drawing an adverse inference for failing to do so arguably engages the right to be presumed innocent in section 25(c) and the right not to be compelled to be a witness: section 25(d). The right to be presumed innocent is also closely connected to the right to silence set out in section 23(4) NZBoRA.
8.6 The Commission considers that imposing an obligation on the defence to
disclose prima facie limits the right to be presumed innocent,
the right to
silence and the right not to be compelled to be a witness and therefore the
right to a fair trial generally. The question
which arises therefore is whether
imposing a mandatory obligation to disclose (and the corresponding ability to
draw adverse inferences)
can be considered a justified limit in terms of section
5 NZBoRA[30].
8.7 The relevant objectives here are to increase the efficiency of the Courts and reduce inconvenience to innocent participants in the criminal justice process. However, this tends to lose sight to some extent of the purpose of a criminal trial. As Don Mathias QC has observed[31]:
The task of a criminal trial ... is to do justice between a defendant and the public. Doing justice here is not the same as discovering the truth at any cost.
Further the argument that mandatory defence disclosure will lead to increased efficiency is not universally supported. In relation to the situation in the United Kingdom, for example, Leng noted:
Defence lawyers are unlikely to go out of their way to disclose every last detail. If that is the case, disputes may arise not only about whether disclosure has been made but also about its sufficiency. Where multiple defences are notified, their consistency or otherwise may be disputed and for all cases the nature of the permissible inferences must be decided. If the judge decides many of these issues against defendants, a spate of appeals may be expected. It also seems very improbable that by multiplying the issues to be determined at pre-trial hearings, one can reduce the time spent in court.[32]
8.8 While increasing the efficiency of the Courts and reducing inconvenience
to innocent participants are important social objectives,
the Commission
considers that what is proposed is not rationally connected to these objectives.
While defence disclosure as a tool
for trial management may be desirable, it
does not justify limiting the right of an accused to be presumed innocent and to
remain
silent to the extent provided in the Bill. The courts must ensure that
the burden of proof remains clearly with the prosecution –
the prosecution
brings the case and must prove it.
8.9 The Attorney-General has concluded that any limitation can be justified. The Commission disagrees with this assessment and suggests that consideration be given to a solution that is more “rights consistent”. At the very least we recommend removing the ability of the judge to criticise failure to comply with disclosure or invite a jury to draw an adverse inference as a result.
9.1 The rule against double jeopardy protects citizens from the misuse by the
state of its prosecutorial resources and reflects the
importance of finality in
criminal proceedings[33].
9.2 Article 14(7) of the ICCPR provides:
No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
9.3 This right is reflected domestically through section 26(2) of BORA which provides:
No one who is finally acquitted or convicted of, or pardoned for, an offence should be tried or punished for it again.
9.4 Clauses 151 and 154 of the Bill provide two exceptions to the double jeopardy rule:
These exceptions only apply
where it would be in the interests of justice.
9.5 The proposed exceptions highlight a tension between two values fundamental to the criminal justice system’s claim to legitimacy: truth and justice. As Lord Wilberforce explained:
[a]ny determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that conclusion, it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty and security, it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gaps. But there are cases where the certainty of justice prevails over the possibility of truth...and these are cases where the law insists on finality[34].
9.6 The UN Human Rights Committee has stated that as a general principle double jeopardy prohibits re-trials but that a trial may be resumed in exceptional circumstances[35]. One such exception is where an acquittal is tainted by an administration of justice offence. In relation to new evidence, however, while more serious offences may provide a stronger justification for interference, less serious offences are harder to justify.
9.7 Clauses 151 and 154 are essentially identical to sections 378 A to F of the Crimes Act 1961 which were introduced by the Criminal Procedure Bill 2004. At that time the Attorney-General concluded that retrial where an acquittal was tainted by an administration of justice offence could be justified as a reasonable limit on section 26(2) but the provision allowing for retrial where there was new and compelling evidence could not – largely because of the definition of a serious specified offence (which had a threshold of 14 years imprisonment). The Commission agreed with that conclusion.
9.8 The section 7 report on the current Bill drew largely on the Attorney-General’s earlier opinion. As little had occurred in the interim to justify altering that view the Attorney- General arrived at the same conclusion as in 2004. Again, the Commission agrees. Clause 151 (tainted acquittal) can be justified but clause 154 (new and compelling evidence) cannot. We recommend now (as we did then) that the Select Committee consider deleting the new and compelling evidence provision or raising the threshold of offences to which it applies.
10.1 Clause 361 provides a power for courts to make costs orders against a defendant, their lawyer or a prosecutor for failing to comply with a procedural requirement of the Bill or the Criminal Disclosure Act without reasonable excuse. This is justified as a way of changing long standing behaviours and encouraging compliance with the new procedural requirements[36].
10.2 The discussion document that preceded the introduction of the Bill also suggested that such a provision would highlight the importance of effective case preparation and encourage higher performance. It noted that costs orders have a strong symbolic value. It is likely that the first cases in which costs are imposed against counsel will become quickly known in the profession and will have an immediate effect on behaviour[37].
10.3 We are concerned at the judge’s ability to punish counsel in this way. It is unreasonable and unfair - lawyers may act in a particular way in the best interests of their clients and it is inappropriate that they could be penalised for doing so. Further, the impartiality of the bench could be compromised if judges effectively become prosecutors of counsel.
10.4 It could also entrench the dichotomy between wealthy clients (who would be able to pay costs imposed on their counsel) and defendants with limited financial means (who would not) and may be left without the benefit of counsel as a result. Lawyers not reliant on legal aid work for their income may also stop providing services.
10.5 The Commission recommends that any sanctions on counsel be left to the inherent jurisdiction of the Court in exceptional circumstances where gross negligence can be established or to the standard disciplinary framework that already applies to the legal profession.
11.1 The Commission considers this Bill has much to commend it. It strongly supports a legislative framework that ensures justice is provided fairly and efficiently. Among the specific changes that we are pleased to see is the repeal of the reverse onus of proof under the Summary Proceedings Act and moves to clarify name suppression.
11.2 There are, however, aspects of the Bill that could have the effect of undermining our current system of justice. Paramount among these is the decision to limit jury trials to those carrying a sentence of 3 years or more and increased reliance on judicial decision making in a variety of areas. Together these changes herald a shift away from the adversarial system towards a more inquisitorial process.
11.3 The way in which the change to trial by jury is to be effected involves an amendment to the NZBoRA, calling into question the status of the NZBoRA itself. This is a major issue which would be more appropriately dealt with in the upcoming Constitutional Review.
11.4 The Commission also considers that the implication of changing the threshold for trial by jury requires wider public consultation. Effective community engagement involving all the relevant stakeholders generates better decisions and is the key to robust legislation. We suggest that amending the threshold at which a defendant can elect trial by jury is deferred until there is some clearer evidence of the impact of the other changes proposed and there has been informed public debate such as that which accompanied the changes to the Electoral Finance legislation or preceded the new Police Act.
11.5 The Commission also recommends:
➢ amending clause 128 to allow a simple judicial discretion to proceed or to ensure section 25(e) NZBoRA is a mandatory consideration in exercising the discretion;
➢ removing the reverse onus of proof in relation to section 113A Fisheries Act 1996 and section 53A(4A) Civil Aviation Act 1990;
➢ deleting clause 106 which allows a judge to criticise failure to comply with disclosure at the pre-trial stage or to invite a jury to draw an adverse inference as a result;
➢ deleting clause 154 relating to new and compelling evidence or at the very least raising the threshold of the offences to which it applies;
➢ deleting clause 361 which would allow the courts to order costs for failure to comply with a procedural requirement of the Bill or the Criminal Disclosure Act without reasonable excuse.
[1] Section 5(2)(k)(iii) HRA
1993.
[2] Butler & Butler
The New Zealand Bill of Rights: A commentary, Wellington, LexisNexis 2005
at p.9; P Rishworth et al. New Zealand Bill of Rights, Melbourne, OUP,
2003 p.2; P Joseph Constitutional and Administrative Law in New Zealand
2nd ed. Wellington, Brookers, 2001 p.1018
[3] This was extended in the HRA
1993 to include not only the UN Covenants but also the Conventions
[4] C. Sisterson
“Significant stoush ahead over criminal justice reforms” NZLawyer
online accessible at www.nzlawyermagazine.co.nz/Archives/Issue150/15N1/287/Default.aspx
[5] Report of the
Attorney-General under the New Zealand Bill of Rights Act 1990 on the proposed
amendment to section 24(e) of the New
Zealand Bill of Rights Act 1990 in the
Criminal Procedure (Reform and Modernisation) Bill at para 22
[6] Report of the
Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal
Procedure (Reform and Modernisation)
Bill
[7] [1966] 1 QB
273
[8] See for example, Lord
Devlin in “Trial by Jury” (1956) “...Trial by jury is more
than an instrument of justice
and more than one wheel of the Constitution: it is
the lamp that shows that freedom lives” Citing Macaulay, The History of
England from the Accession of James II (1849)
[9] We note that when passed, the
NZBoRA had the unanimous support of the House of Representatives.
[10] SC 48/2009 [2010] NZSC
54
[11] Lord Devlin “Trial
by Jury for Fraud” (1986) Oxford Journal of Legal Studies: Vol.6, No.3 at
315
[12] The Committee on the
Elimination of Discrimination Against Women in its concluding comments in 2007
requested New Zealand to take
“concrete action and establish goals and
timeframes to increase the number of women in decision-making positions”
in
the judiciary. In Human Rights in New Zealand: A Summary 2010 the New
Zealand Human Rights Commission listed as a priority area for action:
“Increasing diversity in the
judiciary.”
[13] A
Theory of Justice Cambridge: Harvard University Press (1971)
[14] Human Rights Committee,
General Comment No.14, para
11
[15] Section 376 CA 1961
[16] Section 158 SPA
1957
[17] [2002] EWCA Crim 2949; [2003] 1 AC 1
(HL)
[18] See, for example,
Colozza v Italy [1985] ECHR 1; (1985) 7 E.H.R.R 516
(ECHR)
[19] [2007] NZSC 7; [2007]
3 NZLR 1 at [70]
[20] [2001] 3
WLR 107 (quoting Sachs J in State v Coetzee [1997] 2 LRC
593)
[21] The Chief Justice
considered whether justification of the presumption of innocence could ever be
limited as it denies the right entirely
[22] [2010] VSCA 50 (17 March
2010)
[23]Cf. section 6 NZBoRA.
The Victorian Court endorsed the approach adopted by the Chief Justice in
Hansen
[24]
CCPR/C/NZL/CO/5 at para 17
[25]
Sections113A Fisheries Act 1996 and 53A(4A) Civil Aviation Act
1990
[26] Misuse of Drugs
Amendment Bill 2010 and the Criminal Proceeds Recovery Act 2009
[27] For example, it seems
logical that offences under the Animal Welfare Act 1999 which involve the
mistreatment or neglect of animals
should be subject to a reverse onus as does
contravention of section 59 of the Securities Act 1978 and furnishing documents
continuing
false information under the Takeovers Act
1993.
[28] Section 9 Evidence Act
2006
[29] For example in October
2007, the Chief District Court Judge issued a Practice Note on pre-trial
procedures in criminal jury trials
in the District Court. The Practice Note
requires the defence to prepare and file a memorandum prior to the first call
over which
addresses:
• (f) if appropriate, the likely issue(s) at trial (any such indication would not constitute an admission of facts pursuant to section 9 Evidence Act 2006);
• (l) any other issue which it has identified and which will or may
require determination before the
trial.
[30] See test in para
6.9(supra)
[31] Submissions on
the Criminal Procedure (Reform and Modernisation) Bill 23-1 (2010) (20/1/11)
accessible at donmathias.zoomshare.com/files/cpsubs.pdf
[32] R. Leng, “Losing
Sight of the Defendant: The Government’s Proposals on Pre-Trial
Disclosure” [1995] Crim. L. Rev. 704 at
705.
[33] Finality in criminal
proceedings not only protects a person from the oppression of having to defend
themselves repeatedly, it also
promotes closure after potentially tragic events,
allowing a line to be drawn indicating that a crime and its aftermath are now
closed.
[34] The Ampthill
Peerage [1977] AC 547,
569
[35] CCPR General Comment
No.13: Article 14 (Administration of Justice) “Equality before the
Courts and the right to fair and public hearing by an Independent Court
established by Law” at para
19
[36] Criminal Procedure (Reform
and Simplification) Bill, Explanatory Note at
7
[37] Ministry of Justice, Law
Commission, Discussion Document: Mechanisms to ensure compliance with
criminal procedure obligations (May 2009) at para 30
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