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Preface

THE LAW COMMISSION’S REFERENCE on criminal procedure has the following purposes:

(1) To ensure that the law relating to criminal investigations and procedures conforms to the obligations of New Zealand under the International Covenant on Civil and Political Rights and to the principles of the Treaty of Waitangi.

(2) To devise a system of criminal procedure for New Zealand that will ensure the fair trial of persons accused of offences, protect the rights and freedoms of all persons suspected or accused of offences, and provide effective and efficient procedures for the investigation and prosecution of offences and the hearing of criminal cases . . . and to make recommendations accordingly.

The criminal procedure reference needs to be read together with the evidence reference which has the following purpose:

To make the law of evidence as clear, simple and accessible as is practicable, and to facilitate the fair, just and speedy judicial resolution of disputes.

With this purpose in mind the Law Commission is asked to examine the statutory and common law governing evidence in proceedings before courts and tribunals and make recommendations for its reform with a view to codification.

Both references were given to the Law Commission by the Minister of Justice in August 1989 and the Commission is proceeding with them by stages. A report on Disclosure and Committal (NZLC R14, 1990) and an issues paper on The Prosecution of Offences (NZLC PP12, 1990) have been published. A discussion paper, Criminal Evidence: Police Questioning (NZLC PP21, 1992) and a final report, Police Questioning (NZLC R31, 1994) followed. Discussion papers on the prosecution system and on juries are also to be published this year.

Many aspects of this paper are also relevant to the evidence reference. The paper therefore needs to be considered with the publications under that reference. Two papers published in April 1991 on principles for the reform of evidence law and codification of evidence law are particularly relevant to this paper, along with the discussion papers on privilege (NZLC PP23, 1994) and documentary evidence (NZLC PP22, 1994). The Commission has previously referred to the privilege against self-incrimination in Part I of Criminal Evidence: Police Questioning, in the context of the right of silence.

The Law Commission’s work has been ably assisted by consultants: His Honour, Judge Harvey, who gave general advice on reform options; Ms Caren Wickliffe, who advised on Treaty of Waitangi and te ao Mäori issues; Mr Stephen Kós, who advised on the application of the privilege to corporations; Mr Richard Mahoney, who critiqued the penultimate draft of the paper; and Mr Garth Thornton QC, who drafted the legislative provisions. The Commission has also sought information from organisations conducting investigations or prosecutions. A list of those organisations appears in Appendix A. The Commission also acknowledges the work of Janet Lewin, a senior researcher, who researched and drafted the paper.

This paper sets out the options for reform concerning the privilege against self-incrimination and contains preliminary conclusions, proposals, and draft provisions with an accompanying commentary.

Formal submissions or comments on this paper should be sent to the Director, Law Commission, PO Box 2590, Wellington, by 29 November 1996. Any initial inquiries or informal comments can be directed to Janet Lewin (04 473 3453).