Legal Beagle by Graeme Edgeler


Hidden in plain sight

I have posted on criminal procedure before.


The Criminal Procedure Bill – finally passed in 2009 – introduced a swathe of changes to New Zealand's criminal process. In the end, its most controversial aspect seemed to be the move away from oral depositions in indictable cases (disagreement over that is what saw the bill take so long in the House before its final passage), but it fundamentally altered a number of long-standing tenets of criminal procedure:


  • It introduced the changes that allowed the prosecution of the Urewera Arms Act charges to be judge-alone despite the opposition of the defendants.
  • It allowed for majority jury verdicts (11-1).
  • It abolished the absolute rule against double jeopardy, allowing someone acquitted to be tried again if new and compelling evidence could be found (or if the acquittal was 'tainted').


It was also a drop in the ocean.


The Criminal Procedure (Reform and Modernisation) Bill is the wholesale change that has been mooted as needed for years. And in many respects, it is needed. Criminal procedure in New Zealand is a bit of a mess – amendment added to amendment with little if any overall coherence.


Intriguingly, some of the changes that received the most adverse comment when the bill was introduced weren't changes at all – the exceptions it includes to the rule against double jeopardy are simply being re-enacted in a different statute.


The bill was introduced in November last year, Select Committee submissions closed in February.


It is not right to say that the process of reaching the legislative stage has been short, the Ministry of Justice-led Criminal Procedure (Simplification) Project began in 2007. It – and the bill itself – draw on Law Commission recommendations going back more than a decade. But its reasonably long gestation, does not mean there are no concerns. It is a major reform, and soon-to-retire Minister of Justice Simon Power appears intent on its passage before the election.


You will appreciate soon why I begin with this quote from one of the Select Committee submissions on the bill:


The Bill will change significantly the system of criminal justice in New Zealand. It has been a matter of concern that the reform has been developed under such tight time constraints. ... Not all the matters we have raised have been addressed in the Bill.


The Ministry [of Justice] and the Law Commission have indicated that the Bill is to some extent still a work-in-progress and that they will be recommending further changes. Because we hope to have the opportunity to comment on the modifications as they develop, I propose now to refer to three matters only.


The first relates to the pre-trial case management provisions.... [We] met with the Ministry and the Law Commission recently to convey to them the difficulty which is being experienced in understanding exactly what is intended to be prescribed by way of pre-trial procedures. This portion of the Bill contains many gaps, apparently intended to be filled by rules. I should say at once that [our view] is that requirements for all significant steps in the pre-trial process should be contained in the legislation itself, and not in rules. What emerged from the discussion with officials was that they recognised that in the present state of the Bill it is impossible adequately to address the many issues arising. We were advised that it is intended to prepare a further draft for the consideration of the Committee in which it is hoped to cure the problems with the present draft.


The last Criminal Procedure Bill was introduced in June 2004. The Select Committee took over a year considering the bill, and 10 months after it reported, the Bill got its second reading. A further 10 months later, the Committee stage began, but this didn't finish for another 15 months. The final reading (and the Royal Assent) followed shortly after. Plenty of time for public and parliamentary debate.


But who was behind this politely-phrased-but-pointed criticism? It was not the Criminal Bar Association, the New Zealand Bar Association, nor the New Zealand Law Society – although all are critical of aspects of the bill.


The submission was made public by the Justice and Electoral Select Committee a week ago – and is available by now on Parliament's website. It is from the Chief Justice of New Zealand. Written after consultation with the Chief High Court Judge, and the President of the Court of Appeal, it represents the “view of the Judiciary”. To me, this is a pretty big deal.


And undue legislative haste is not the only matter of concern to our High Court judges. Chief Justice Elias continues:


The second matter concerns the requirement for notification of issues in dispute in advance of trial and also at the commencement of trial, together with related provisions providing for sanctions in the event of non-compliance both at sentence and by way of costs orders against defendants and their counsel. I have previously recorded my grave concern that these provisions are contrary to longstanding principle, being inconsistent with a defendant's right to have the prosecution prove its case beyond reasonable doubt, not being obliged to assist the prosecution by volunteering information. I appreciate that some defendants and counsel are guilty of abusing the system but, on balance, the judiciary is not persuaded that this provides good reason for the departure from basic principle which is involved in any requirement for advance disclosure of an intended defence.


In part my objection to the sanctions provisions has a similar basis but I should also record that the view of the judiciary is that the sanctions are likely to prove to be impracticable to apply in practice because of uncertainty about whether the abuse of the system is the fault of the defendant or of counsel. Judges will of course be inhibited in their inquiries by the existence of privilege for communications between counsel and client. All-in-all, then, the sanctions provisions are likely, except in comparatively rare cases, to be ineffective.


This criticism is levelled at one of the two biggest changes the law will introduce. This is a big deal. US Vice-President Joe Biden would probably go even further.


And the Chief Justice is not the only member of the judiciary who has submitted on the Criminal Procedure Bill. Our District Court Judges have a joint submission. So too do the Judges of the Youth Court, and the Royal Federation of Justices of the Peace. Judge David Harvey – a recognised expert on IT law – has a personal submission in respect of the changes to our suppression laws.


I lack the institutional knowledge to claim that this is unprecedented – Judges have certainly made select committee submissions before – sometimes controversially – but for Judges to collectively take so public a stance on such a hot-button topic seems of fundamental constitutional importance.


This is a matter which should receive more of a public airing than it has, so it only seems proper to attempt to provide a basic primer on the reforms that the Criminal Procedure (Reform and Modernisation) Bill introduces.


The Bill is over 500 pages. I have read it, but I’m not going to go into great detail here: feel free to ask questions about areas of concern. The bill would:


  • Further restrict the right to a jury trial;
  • Introduce a regime of pre-trial defence disclosure;
  • Abolish the distinction between the indictable and summary jurisdiction;
  • Creates four levels of criminal charges and provides for two basic types of criminal procedure – judge-alone trials, and jury trials;
  • Reforms the laws around name suppression; and
  • Changes the rules around holding trials in the absence of defendants.


Those are the big ones. But this is a wholesale overhaul of criminal procedure. The bill also:


  • introduces greater levels of ‘case management’;
  • allows for bail conditions to be imposed requiring defendants to follow procedural orders;
  • abolishes depositions;
  • largely abolishes the defence onus to prove proviso defences in summary prosecutions (it expressly keeps it for certain offences);
  • legislates for the sentencing indications District Court judges just started informally providing;
  • Changes the ‘appeal paths’ for different matters;
  • extends the limitation period for minor offences (from six months to one year);
  • allows for defence lawyers to be ordered to pay costs if they’re responsible for delays;
  • adds an additional hurdle before private prosecutions can be commenced; and
  • allows documents to be filed electronically


That's not all of course. I don’t doubt I’m missing some pretty big changes, but it’s a pretty big bill. And a lot of it is good. Criminal procedure is clunky, and in need of reform. The question for Parliament is whether this is the right reform in all respects. But let's get to the details:


The right to a jury trial

This is the big one. At present, anyone charged with an offence for which the maximum penalty is more than three months, can request a jury trial (there are two minor exceptions – summary offences act assault, and summary offences act assault on a police officer – both with six months' maximum); it’s in the Summary Proceedings Act 1957, and the New Zealand Bill of Rights Act 1990. It was carried over from the Acts these preceded. It is a right that has been around for a while.


And to get this bit of the law passed, they’re proposing to amend the Bill of Rights. This is only the second time that has happened (and the last time was entirely technical).


There's nothing magic in our Bill of Rights guarantee of jury trial at more than three months. It was 'only' set at three months because that's what the Summary Proceedings Act held was the case when the Bill of Rights was passed. The Canadian equivalent grants the right to a jury trial only “where the maximum punishment for the offence is imprisonment for five years or a more severe punishment .” Many countries just don't have jury trials. The European Convention on Human Rights doesn't even mention juries as they're completely foreign to the legal systems of much of Europe. The Universal Declaration of Rights and the International Covenant on Civil and Political Rights (on which our Bill of Rights is largely based) don't mention it either, for similar reasons.


But it still only seems right that changes to rights we quite carefully declared as fundamental human rights barely 20 years ago should only be made for very careful reasons. And the supposed cost savings don't cut it for me. The numbers vary around the country – I’m told that there are more jury trials in Hamilton than there are in the South Island – but most people charged with minor offences don't ask for a jury trial. Some of the 'minor' offences for which there are jury trials, are jury trial not because the defendant has requested it, but because the prosecution has.


And there are just some offences where the existence of the option of a jury trial performs an important societal function. Family First have, properly, given child discipline as an example. When smacking was outlawed, the police discretion not to prosecute was advanced as reason for ordinary parents not to be concerned. The existence of a jury to try offences of assault on a child is an excellent check on over-zealous prosecution.


And it's not the only offence. There are electoral offences – some punishable by fine only – which Parliament has repeatedly declared should always be heard by a jury, and those deliberate decisions are being overtaken by a simple one-size-fits-all every-offence-three-years-or-less must be heard by judge alone. If this law passes it will be possible for a member of Parliament (or a local body councillor) to lose their seat without being able to insist on a jury trial.


There is one offence with a maximum of only two years, that will still need to be heard by a jury (and a High Court jury at that) – infanticide. Parliament should recognise that this is not the only instance of supposedly minor offending where the input of a jury is welcome. If the we must further restrict the right to a jury trial, there should at least be a mechanism for a judge to order that an offence be tried by a jury even though it is punishable by imprisonment for three years or less.


Pre-trial defence notification of disputed issues

This is the other really big one. It's the one that has opponents saying this bill “reverses the onus of proof”, or “abolishes the right to silence”. It is, interestingly, not one which raised Bill of Rights concerns with the Attorney-General (the Bill did receive a “section 7 report” in respect of other provisions).


It basically requires that – pretty early on the process – a defendant goes through each of the elements of the offence and tell the court and prosecution which ones they accept, as well as any defences that they intend to argue apply. Saying “everything is denied” won't be acceptable, but denying everything point by point will be (which is largely why the Attorney-General wasn't concerned).


It is, as the Chief Justice notes, a pretty fundamental re-ordering of the criminal law. For the last several hundred years it was the job of prosecution to go to court and prove each of the elements of the charges, and disprove any possibly applicable defences.


If a defendant fails to do this adequately, the judge or jury is permitted to use that failure as evidence tending to infer guilt – it won't be enough by itself to convict, but it can add to the case.


Again, we are not world leaders in this. In Britain they go even further – your failure to tell the police of your defences when questioned can be used against you. And in many respects, the change won't be that big – it is quite common for defendants to be up front: yes I punched him, but it was self-defence, etc. And juries probably already use the fact that the defendant never mentioned in his police interview that he acted in self-defence, but is arguing it now as reason for rejecting that defence.


The pre-trial disclosure regime also includes a new prohibition on running inconsistent defences. I'm not sure this is necessarily that big a change either: the much derided “It wasn't me, but if it was it was self-defence” might be inconsistent, but is “I didn't assault the complainant, and the person who did did so in self-defence), and aren't they the same? I've only been on one, so I can't claim any special knowledge, but I imagine juries take a reasonably dim view of this practice anyway.


The abolition of the distinction between the summary and indictable jurisdiction

Our criminal law has two broad types of procedure at present: summary trials (judge alone), and indictable trials (generally heard by judge and jury). Offences are categorised as indictable crimes or summary offences by the law that creates them. There is cross-over: there is a list of indictable offences which the prosecution can file summarily; and a defendant can remove any matter filed summarily to the indictable jurisdiction, if the maximum penalty is greater than three months' imprisonment.


The distinction has effects beyond mere procedure. Only certain District Court judges can hear cases in the indictable jurisdiction. The sentencing jurisdiction in respect of charges in the summary jurisdiction is lower (maximum five years, no matter what the maximum for the offence actually is). Some crimes provide different penalties depending on whether the crime is charged indictably or summarily (sometimes the distinction is marked – there are offences in the Passports Act which carries a maximum penalty of 10 years' imprisonment in the indict jurisdiction and three months' imprisonment in the summary jurisdiction). The appeal paths are different (summary appeals go to the High Court, indictable appeals, even from the District Court in respect of identical charges, go to the Court of Appeal), and pre-trial appeals (e.g. about the admissibility of evidence) are allowed only in the indictable jurisdiction.


It can be a nightmare trying to work out what is going on. From now on, all criminal charges will be the same, although there will be some differences in procedure depending on whether there is a jury. I am not the only one who thinks the time has come for this change (I noted it was missing in my piece on the last bill), although it would have been nice if the six-month time limit in respect of most summary charges had remained.


Four categories of crimes

The Bill creates four categories of offences.


  • Category 1 is offences for which prison is not available. These charges will be heard in the District Court, usually by justices of peace or community magistrates.
  • Category 2 is offences where prison is available, but not more than three years (except infanticide). These must be heard by a judge without a jury in the District Court.
  • Category 3 is offences punishable by more than three years, but which aren't in category 4. These will be judge alone unless the defendant request a jury (which they will be generally required to do when they plead not guilty). The trials will usually take place in the District Court, but a judge can order that a particular trial occur in the High Court.
  • Category 4 is a list of offences which are deemed so serious (e.g. murder, attempted murder), or of a particular nature (corruption, various crimes arising out of international law), that they must be heard in the High Court and must be heard by a jury. The list of offences which must by tried in the High Court is significantly shorter than that which currently applies – and even some offences carrying a life sentence are now triable in the District Courts.


    A large number of crimes which must at present always be heard by a jury (which is generally anything with a maximum sentence of 14 years or higher) can now be heard by judge alone. For example: rape, kidnapping, and even that one offence with a life sentence (engaging in piratical acts in a manner likely to endanger life).


    Reform of suppression orders

    This bill modernises our name suppression laws, making it harder for defendants to get name suppression, and increasing the penalties for breach of name suppression (currently fine-only, it is proposed that it will carry a prison term).


    The changes with suppression rules have been a cause for concern as well, particularly in relation to the obligations imposed on ISPs (rather broadly defined) to take down material alleged to be in breach of suppression orders. This is the focus of a number of submissions the select committee received. It hasn't been a particular focus of mine – others seem to have covered this issue quite well, if somewhat under the radar, but this seems a clear case of over-reach. Hopefully, the select committee will take Judge Harvey's submission seriously. It is difficult to see how, in its present form, this does not represent an unreasonable limitation on freedom of expression.


    Trials in the absence of the defendant

    This – along with part of the re-enacted double jeopardy exclusions – presented the greatest concern to the Attorney-General in his Bill of Rights examination of the Bill.


    Trials can now already occur if the defendant doesn't turn up and it is in the interests of justice for the trial to continue. The bill substantially broadens the circumstances in which this can occur. For category 2-4 offences if the Court is not satisfied that the defendant has a reasonable excuse for being absent it must proceed with the trial. If a defendant actually has a reasonable excuse (e.g. they were hit by bus on the way to Court), but the Court isn't aware of this (for example because the person was hit by a bus on the way to Court, so couldn't inform the Court that they were hit by a bus on the way to Court), that's too bad: their fundamental right to be present at their trial vanishes.


    It does allow for defendants to apply for a re-hearing, but – for some reason not readily apparent – this does not apply to category 1 offence (which the judicial officer may hold in the absence of the defendant but isn't required to). Get hit by that bus on your way to defend a careless driving charge, and if the trial continues without you, you won't be able to say “Hey, I was hit by a bus, give me a new trial.”


    Additionally, you can only get a re-hearing for category 2-4 offences if you can prove you've got a good chance of successfully defending the charge. Every has the right to attend their own trial. If you aren't there, and don't have a good excuse, then you've waived that right, but even the clearly guilty are entitled to their day in court. If you get hit by a bus and the courts don't find out about until a day or two into your coma, it is only right that the courts should wait. Delays are sometimes unavoidable, and the right to confront your accusers is about as fundamental as they get.


    Other matters

    You may notice, if you peruse the list of submitters, that I am not among them. This is the kind of bill I might be ordinarily be quite likely put a lengthy submission in for, but on this occasion I pooled resources with others and offered was one of the lead drafters on the submission of the New Zealand Law Society. Feel free to read its submission here: it certainly wasn't all mine (or even mostly mine), but the technical points I like to make get a good airing. And the one I point I suggested that was dropped was made in the submission of the District Court Judges.


    I haven't the time to detail the technical concerns that the Law Society (and other submitters like the Criminal Bar Association and the New Zealand Bar Association) have raised, and there are a number of very serious ones (feel free to read these submissions too, or to ask question) but it also seems only right to include a few interesting points raised by some of the other judges in their submissions:


    The Royal Foundation Of Justices makes the point that changing the Court hearing appeals from decisions of Justices of the Peace presiding in the District Court from a High Court Judge to a District Court judge, may impact on “the right ... to appeal according to law to a higher court” guaranteed in the New Zealand Bill of Rights Act 1990.


    The Youth Court sensibly asks for a bit more jurisdiction. It currently has jurisdiction to conduct criminal trials for young persons for all offences excluding murder or manslaughter. But it lacks jurisdiction over young persons in respect of the enforcement of fines, and various minor traffic offences (e.g. careless driving) and things like alcohol by-law breaches, which must therefore be heard in District Courts. Not having practiced in the Youth Courts, I had no idea, but it seems kinda moronic.


    But the final words go to our District Court judges on the proposal that judges and juries should be able to draw adverse inferences from defence failures to adequately notify issues in dispute:


    ... to allocate substantive disadvantage to as to one's guilt or innocence on the basis of a defect in procedure is conceptually incoherent, and therefore arbitrary. It is improper to conflate the essentially administrative character of Clause 64 with substantive disadvantage to a defendant's case. It is hard to imagine a hypothetical scenario where it would ever be appropriate to draw an adverse inference from a procedural failure to notify an issue in dispute.


    Paraphrasing, with only very slight hyperbole: even if you pass this law, we are going to ignore it because it will be unjust, and we are telling you this in advance.

    Take note, Parliament.

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