Legal Beagle by Graeme Edgeler


If Britain Jumped off a Bridge...

The Criminal Procedure Bill, among the many laws our Parliament enacts, doesn't really sound like the sort of legislation to create a small furore – least of all over proposed changes to preliminary hearings in the indictable jurisdiction.

Amid the rather fact-free debate over that aspect of this truly omnibus bill (neither of the two victims whom media found to publicly urge National to support the Government's moves were actually required to give an oral deposition), there has been some reasonable debate of those moves, but also a much bigger void about a bill that will change so much more. It is great that the Herald can devote an editorial and an op-ed page to so esoteric a debate as a change to depositions procedure, but I thought I'd try to provide a little more light on some of the bill's other aspects.

The Criminal Procedure Bill was subject to a negative report from the Attorney-General on its introduction as inconsistent with the New Zealand Bill of Rights Act, and the moves around depositions are a only small facet of it; it also:

  • allows for majority verdicts
  • restricts the right to a jury trial
  • abandons the absolute rule against double jeopardy
  • allows for trials that previously had to be heard by in the High Court to occur in the District Court
  • dramatically reforms pre-trial disclosure

That's the big ticket stuff. There's a lot of other stuff too – it's a fairly drastic overhaul of our Criminal Procedure, it further:

  • allows the Government to amend – by regulation – the Summary Proceedings Act (to change the list of offences which must be heard by a jury), and the Districts Courts Act (to change the list of offences that must be heard in the High Court)
  • removes a rather odd prohibition on certain dissenting judgments in the Court of Appeal
  • permits the defence to call an expert witness immediately after the prosecution's expert witness (instead of waiting until all the prosecution's evidence has been called)
  • allows juries to select their foreperson later in the trial
  • allows those called to jury service to defer their service for up to 12 months
  • reduces the number of peremptory challenges (challenges without cause) each side may make during jury selection (from 6 to 4)
  • removes the absolute requirement for jury sequestration during deliberations
  • allows a further pre-trial appeal on important preliminary matters to the Supreme Court (effectively overturning that Court's decision in Clark v R).

The bill largely arises from some Law Commission papers from a few years back (2000 on criminal procedure, 2001 on juries); the one major recommendation it doesn't adopt would essentially amount to a complete overhaul of the distinction between the indictable and summary jurisdictions (something, if done right, that could be incredibly useful – I've appeared in the Court of Appeal when judges have noted their disappointment that the Criminal Procedure Bill wasn't picking that fight).

The above is naturally just the potted summary – pertinent facts missing for effect – and given we're now likely to see swift legislative action on the remaining stages of the bill, I thought I'd run through a few of the details, and provide a comments thread for, well, comment.

Majority verdicts
There isn't really much in the way of detail for this. After 4 hours of deliberations, juries will be allowed to convict or acquit if there is a single hold-out (11 votes to 1). 10 votes to two will remain a mistrial, but lone dissenters will no longer be able to hold out. For myself, I think this is an unnecessary change. Mistrials from jury disagreement are rare, and lone dissenters must be rarer. We have juries of 12 people for a reason and requiring unanimity among them is a mechanism to reassure society that we convicted (or acquitted) someone justly – when we know that 12 people, individually and collectively, have reached the same view on guilt without fundamental disagreement, we can more faith in the result.

The right to a jury trial
It's been pretty fundamental for a very long time that if we face being sent to prison, we have a right to a jury trial. Apparently it's in the Magna Carta, and I believe it's somewhere in the US Bill of Rights too. Any time you're charged with an offence carrying a maximum term of more than three months imprisonment – even if actual imprisonment for such a term (or at all) is improbable – you have the right to request that your case be heard by a jury (I believe the single exception is Summary Offences Act assault – a possible six month term).

We're obviously not proposing to get rid of them completely (that whole majority verdict would be a bit of a waste of time), but this right is to be curtailed in some instances. Under the Criminal Procedure Bill, a judge will have the power to declare that any trial be held without a jury if:

there are reasonable grounds to believe that intimidation of any person or persons who may be selected as a juror or jurors has occurred, is occurring, or may occur; and ... the effects of that intimidation can be avoided effectively only by making [such] an order.

The right to a jury trial will also be curtailed in circumstances where the trial is likely to be long (20 days – i.e. a month) and complex.

It is envisaged that the exception for long and complex cases will generally apply to complex fraud cases, and it won't apply to very serious offences: those carrying maximum sentences of 14 years or more will still have to be heard by a jury. The select committee report, a little old now because the Government has been sitting on the bill waiting for Parliamentary majorities on all its provisions, notes that in the preceding five years, 11 trials would have been eligible to be heard by judge alone under this provision.

Double jeopardy
The two exceptions to the rule that this Bill introduces have been termed “tainted acquittal” and “new and compelling evidence”.

The tainted acquittal exception is pretty uncontroversial – it allows for a fresh trial where the previous acquittal was obtained through criminal action. I believe the Law Society and some others opposed it before the Select Committee, but even Tony Ellis doesn't have a problem with this. It applies only in the situations where it really should – where there has actually been a conviction for perverting the course of justice in the trial, and the High Court considers it is more likely than not that the offence was a significant contributing factor in the person’s acquittal. If someone is acquitted because they bribed the judge or police, got someone to perjure themselves, threatened jurors, manufactured evidence or conspired to defeat justice, and is convicted of this, there really is no reason we shouldn't get a second go at sending them to prison for what they did the first time.

The other one, however, is very different.

Whilst the Law Commission did consider whether we should have a new and compelling evidence exception, it rejected one. And it was this aspect of the Criminal Procedure bill that caused sufficient alarm in the Crown Law Office that the bill received its negative report from the Attorney-General.

It doesn't mean that if a prosecution fails the first time, the Police can just have another go, but it is a vast change from the law that has operated for centuries – new and compelling evidence will be a ground upon which police can re-investigate, and ultimate re-charge, acquitted defendants.

The laying of charges against someone, and bringing them to trial – with all that entails – is one of the greatest impositions of state power there is, and there are very good reasons for not letting them do it repeatedly.

The provisions do only apply to offences where the maximum penalty is at least 14 years imprisonment, and the evidence must be both new (i.e. not used at the first trial, and could not, with the exercise of reasonable diligence, have been used at the trial) and compelling (i.e. a reliable and substantial addition to the previous evidence that implicates the accused with a high degree of probability). Moreover, the police cannot continue an investigation into an acquitted person without prior consent from the Solicitor-General, and can only actually proceed to trial if the Solicitor-General convinces the Court of Appeal that it should. It can only be used once – the police can't just keep finding new and compelling evidence – and is not retrospective.

Intriguingly, there was a National Party supplementary order paper that would have removed the new tainted acquittal rules, and restricted the new and compelling evidence rule to fresh DNA evidence. As a matter of practicality, the exception may well be limited to evidence obtained through advancing technology – most other evidence (new witnesses etc.) probably could have been found with reasonable diligence at the time.

Moving trials to the District Court
This is the aspect that led the Chief High Court Judge to call for urgent action in the passage of legislation (and I'm pretty sure it was the only matter over which he publicly sought action). It allows for various offences that currently may only be heard in the High Court to be heard in either the High Court or the District Court (and allows for the Government to change these by regulation – something Parliament's Regulations Review Committee came out against). I believe it is this power that Justice Randerson hoped would be used to clear a backlog of cases in his court.

At present all trials in which a life sentence is a technical possibility must be heard in the High Court. This includes pretty much all offending (other than mere possession) involving methamphetamine and other class A drugs. Even small time dealers – selling a few (is it hits?), who will get at most a few years, have to be tried in the High Court, and it's not really the best use of High Court time and space. It's serious offending, sure, but not so serious that they can't be heard by District Court juries (which, after all, already hear most rape trials).

Criminal Disclosure
This is an aspect of the bill I haven't looked into too closely. It involves a major overhaul of our current laws relating to criminal disclosure, and creates a standalone Criminal Disclosure Act, that seeks to codify a range of statutory and common law obligations that the prosecution has toward the defence.

I don't think there is too much controversial about it (except to the extent that it may re-state already controversial law in one place) but I welcome any input in the comments thread. At the least it's not as interesting from my perspective – not really raising important issues about high principle in the way that double jeopardy or majority verdicts do – if anyone has concerns, or would like a second look at an aspect of the new regime I'm happy to continue the debate.

Oral Depositions
This is one aspect that has gotten a reasonable going over in other places – it removes the automatic right of defendants in indictable proceeding to question prosecution witnesses during a pre-trial hearing, and most will proceed on the basis of written statements of evidence. Judges will be able to order in the interests of justice in a particular case that oral evidence may be taken, and the defence will be permitted to argue that this should happen. As it's had a good showing, I'll add only one thing – the explanatory note of Chester Borrows' proposed amendment that would have reinstated oral depositions; it's a concise distillation of the arguments against the proposal to get of the right to an oral depositions (he seems to be making a habit of having the rug pulled from under his proposed amendments):

Oral pre-trial hearings frequently remove complexities thus narrowing the issues and often shortening trials. The display of evidence often results in guilty pleas by defendants and/or accommodations by the prosecution, which may also lead to guilty pleas or withdrawals of charges. As a result there are fewer trials, trials may be shortened and the entire process streamlined. All of this would be lost if the current legislative provisions are repealed...

Everything Else
The more minor details, while important, all seem reasonably self-explanatory or less interesting, and I'm happy to leave it at bullets for the time being.

We're not alone in making many (any?) of the major changes this bill entails. Majority verdicts are common in other jurisdictions (wikipedia tells me Scotland has 15 member juries where 8 is all that is needed to convict), and countries with inquisitorial judicial systems (i.e. most of them) have different conceptions of double jeopardy to begin with. Unfortunately, much of the rationale the Government seems to be relying on in its case for change is that other jurisdictions have already made such changes (which led to the title of this column). I want something better than that.

The legislation is well advanced. It may have taken a while (the Select Committee report was from the last Parliament!), and it's now too late for Parliament to change its mind over double jeopardy without changing its rules (the committee of the whole stage began over a year ago and the criminal disclosure regime and double jeopardy stuff went through intact), but a little extra public debate seems warranted. What do you think?

P.S. For those who haven't read it yet, I recommend Steven Price' short post arguing that the Sensible Sentencing Trust has committed a criminal contempt of court. I think Steven finds more contempts of court than David Farrar finds breaches of the Electoral Finance Act, but this one is particularly delicious.

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