Depositions Hearings
June 3rd, 2008 at 7:20 am by David FarrarThe Government’s Criminal Procedure Bill would allow a Judge to decide whether or not there is evidence for a case to go to trial, based solely on written evidence – unless the Judge specifically calls for a depositions hearing.
National and the Law Society are opposed to this. I think it is actually a very laudable idea and worth supporting.
First of all, how often does a case not go to trial because of lack of proof at a depositions hearing? Almost never. Take for example the Sophie Elliott case – the accused was witnessed stabbing her, and was alone in the room with her. There was never ever even a 0.1% chance the case would not go to trial.
I am very mindful of the impact on victims having to sit through both a depositions hearing and a full trial.
The argument against getting rid of depositions hearings (and I welcome lawyers especially to comment) seems to be that they often lead to the accused them pleading guilty and/or doing a plea deal. I’m not convinced these might not happen anyway as there will still be depositions – just written instead of oral.
I’m also comforted by the fact the Judge could have discretion to call for oral depositions if the case was “borderline”. But it appears to me 95% of the cases are not borderline, will clearly go to trial and spending days in court just traumatises the family further, costs money, takes up scarce court time and does little to advance rather than delay justice.
The Law Society submission on the Bill is here. Page 40 has the arguments on this issue. They seem to be against almost every suggested change, and my suspicion is that the defence lawyers wrote the submission 
So I’m puzzled by National’s opposition to the Criminal Procedure Bill. National positions itself as pro-victim and anti-waste. The Press editorial calls for the Bill to be passed, as do I.
Related posts:
- Herald calls on National to support Criminal Procedure Bill
- More from Field depositions
- The Elliott depositions
- Field hearing in April
June 3rd, 2008 at 7:44 am
A depositions hearing seems to be a hangover from some earlier time when bush lawyers/judges brought charges to the ‘big’ court. Any reason to reduce legal aid bills and remove leeches from the public tit are a good thing however is there a chance that this is a case of government reducing the legal rights of the accused?
Vote:June 3rd, 2008 at 7:51 am
“So I’m puzzled by National’s opposition to the Criminal Procedure Bill. National positions itself as pro-victim and anti-waste.”
Well, I’ll confess to not being swayed either through sheer ignorance. I do adhere to a principle though that it is always better to suffer a guilty man going free than an innocent man being incarcerated. However on your note above alone re National’s positions, I’ll gladly say that it is within the courts, police and military that I would grant much more leeway for “waste”. I think it was Tariana Turia complaining once about the “cost” to taxpayers of certain police investigations (around the time of the “Urewera 15/16/17/whatever”) I recall yelling at the daft bint on the telly that that was what taxes should be for! And again people complaining about costs involved with the stab proof vests. Frankly I don’t care how much it costs, get them properly equipped and funded to do their thankless job. Same with the courts, I’d rather have justice than efficiency.
“just traumatises the family further, costs money, takes up scarce court time and does little to advance rather than delay justice.”
Sorry, but if I’ve been falsely accused, I’ll be scraping up every little scrap of the justice system that I can to my advantage, I may need it. If this causes a victim and/or the victims family further trauma, that won’t be my fault, that will be the fault of the actual guilty person/persons. I’ll not jeopardise my chance at justice to make them feel better.
Vote:June 3rd, 2008 at 7:52 am
“swayed either way” that should read
Vote:June 3rd, 2008 at 7:58 am
is there a chance that this is a case of government reducing the legal rights of the accused?
Dirtbag murderers like the man who killed Sophie Elliott do not need their ‘rights’. They need to swing from the hangman’s noose. All this bleating about the ‘rights’ of crooks is just contributing to our increasingly lawless society.
I suspect National do not support this because they know that the government has no credibility on crime issues and that they are not going far enough.
Vote:June 3rd, 2008 at 8:02 am
“All this bleating about the ‘rights’ of crooks is just contributing to our increasingly lawless society.”
All this “bleating” is in fact about the rights of EVERY citizen should they face accusation of a criminal offence. Innocent until proven guilty in a court of law and all that…
Vote:June 3rd, 2008 at 8:09 am
There does seem to be a corollary between this and Hulun’s penchant for removing the peoples right to challenge government decisions.
However does this ability to present an initial case need to take place in court with a cast of bludging lawyers involved? Bludging legal aid lawyers in most cases….
Does the LAW need improvement, should it be removed from reform? Yes and No.
Oh, and DrDoolittlesDonkey, a democracy has a proper legal system. Thats why we can vote Hulun out.
Vote:June 3rd, 2008 at 8:17 am
Expat, in a proper legal system the murderer of the Kahui twins would have been found. But under Labour it’s a case of oh dear, how sad, never mind, ‘move on’.
Vote:June 3rd, 2008 at 8:18 am
http://www.nzherald.co.nz/section/1/story.cfm?c_id=1&objectid=10514032
haha ha.
Gummint ‘allows’ challenges but closes them down through prescriptive and onerous process – classic labour
Vote:June 3rd, 2008 at 8:22 am
In the case of rape, there is already far too much opportunity for a case not to go ahead, with prosecution saying there is no case to answer or not enough evidence. One judge, who may or may not be biased against rape victims/survivors, is a risk to fair and truthful justice for women/children/men.
Vote:June 3rd, 2008 at 9:00 am
1. The average legally aided depositions generally costs around $500 incl. GST.
2. Crims do often need plead guilty after deps, despite their laywer’s advising them to do so all along. They need to see the evidence, not just read it, in order to understand just how screwed they are.
3. Most importantly, the depositions hearing gives the defence lawyer the opportunity to explore the issues surrounding the defence and determine what pre-trial applications they will be making. Often there is not enough in written depositions to truly indicate the nature and extent of pre-trial issues. Often deps shows up vast changes in what the police expect to be said, and if you prepare for a trial without the opportunity that deps provides then the defence will be more often unprepared compared to now. For example, a drugs trial where the search warrant is in issue is in no way a ‘borderline’ case, but without the deps then there is only the briefs of evidence to go on for any pre-trials. Most defence lawyers will then wait until trial to challenge the evidence.
4. If we don’t have deps then the end result will be more trials scheduled and then falling over. Considering the huge (in the region of several hundred) backlog of trials, that is not a good thing.
5. Legal Aid pays so little for trials that most of us are trying to get out of doing legal aid trials anyway.
Vote:June 3rd, 2008 at 9:01 am
What is required is a public prosecutions office, who would take responsibility for making a case, and who would be a neccesary stopgap measure to ensure that the police must actually make a case for prosecution. They would advocate for the law, and ensure that the a prima facie case is possible even before the issue comes to trial!
Vote:June 3rd, 2008 at 9:05 am
Justice is a sick and shambolic joke in NZ. With many defence lawyers’ bemoaning the fact that the Ministry of Justice lump together trials in a scheduled time period so they can manicure statistics to make them look good. To me, it seems shameful to endorse a move to eradicate depositions. In Canterbury many defence lawyers are advised on the Friday that their trial will commence Monday. Hardly fair and the BENT Crown prosecution team is the big winner here. On the plus side. I suppose it stops low life newspapers like the Ashburton Guardian from persecuting innocent fathers by writing up a front-page sensational account of a deposition hearing,then failing to recognize the fact and write anything when the matter doesn’t proceed to trial due to the defence evidence produced in the period between depositions and trial.
Vote:June 3rd, 2008 at 9:46 am
..In Canterbury many defence lawyers are advised on the Friday that their trial will commence Monday.
What utter complete nonsense.
Vote:June 3rd, 2008 at 9:51 am
Fact GWW – just ask a few of them. If you like to email me I will give you the email addresses of two high profile defence barristers. Do you think I would say something like that without proof, and biggirlsblouse do stop the malicious emails thank you.
Vote:June 3rd, 2008 at 10:18 am
The lists stretch out for months anyway. Some lazy lawyers want more adjournments and then get told no. But this would only happen if they have had a previous adjournment.
Vote:Whats the big secret , if its happening as you say the more public scrutiny the better, go ahead and name judges
June 3rd, 2008 at 11:14 am
I’m in favour of retaining the depositions hearing. The written evidence is often only part of the story. Cross examination at depositions is absolutely essential – you simply don’t know how a witness is going to react in front of a jury and you have a right to assess that witness before the jury hears the evidence. In stressful cases (i.e. sexual) the complainant doesn’t give evidence at depositions – their evidence is handed up on paper. Depositions are not usually attended by the media (unless major) and the atmosphere is less tense than in a trial. The complainant would be better to give evidence at depositions for the first time than at trial. If depositions was abolished, defence counsel would request meetings with prosecution witnesses which would be stressful, time consuming and objected to by the police (as is usually the case). The police request that they sit in on interviews with their witnesses which is ridiculous. Depositions allow the accused to hear the case against him and reflect on his not guilty plea – often the accused pleads guilty after hearing that evidence. If matters went straight to trial, there would be no net saving as there would be the need for more jury trials – there is already a 10-12 month wait to be heard at a jury trial. There is a discount for pleading guilty which saves time, cost and stress – if matters are marched through to a trial there would be fewer guilty pleas entered. Defence lawyers would take the position of “let’s take our chances with a trial” rather than advise clients to make a guilty plea (or plea to a lesser offence). Also, cases are thrown out at the depositions stage (I would dispute the 95% figure).
Remember this is coming from the Labour party meaning, even if it is not an attempt to screw the scrum, it is usually not well thought out and there will, of course, be a number of unintended consequences. Quite uncommon it is to have a quality piece of Labour led legislation.
Vote:June 3rd, 2008 at 12:44 pm
“In Canterbury many defence lawyers are advised on the Friday that their trial will commence Monday.
What utter complete nonsense.”
Actually, D4J is right, GWW. Not uncommon around the country for lawyers to get a call from the Court (or the Crown in Christchurch) to say that the trial is going ahead next week, like it or not.
“The lists stretch out for months anyway. Some lazy lawyers want more adjournments and then get told no. But this would only happen if they have had a previous adjournment.”
Not too many lazy defence lawyers that I know. Most of us are overworked as there are too few of us. We don’t often get adjournments in trial jurisdiction without a damned good excuse and the judges are very tough on us. Don’t forget that most of us are barristers operating on our own and without the resources that the law firms have. The Crown, on the other hand, are well funded and operate as firms so that when a trial is brought forward at short notice they always have someone ready to do it.
Anyway, we defence lawyers don’t like delays because we get paid twice in a trial matter, once at the end of deps and again at the end of trial The more a trial is put off the longer we have to wait to get paid. My colleagues and I are all for having trials as quickly as possible. It is just impossible for a couple of reasons- first, the police couldn’t handle it. They have obligations to both the defence and the Crown and they find it difficult enough at present to meet them in a timely manner. Second, most trial lawyers also have a significant Summary jurisdiction practice and that means our diaries are full often up to 6 months in advance or more. I have seen defence lawyers booked up for 9 months out. As a result, the Court in any particular case has to fit in with our other obligations in all of the other cases we do. So we get long waits for cases to resolve. Nothing the defence lawyers can do about it.
Vote:June 3rd, 2008 at 1:17 pm
I can think of a particular high profile case where the depositions proved highly useful. A while ago a knife wielding lunatic entered a Penrose gunstore and demanded firearms, threatening to kill the store owner (Greg Carvell) unless he complied. Carvell shot the lunatic and was charged with possesing a firearm “without lawful, proper, or sufficient purpose”. The (idiotic) police attempted to prosecute him, however the case was thrown out at depositions.
The central point is that here is that the police have been known to bring idiotic prosecutions (particularly when someone utiilises firearms for self defense), and it is useful to have a means of preventing them going to a full trial.
Vote:June 3rd, 2008 at 1:41 pm
While the deranged greens woffle meaningless crap about social justice both Labour and National have put justice well down on the list or priorities, and not until New Zealand promotes it up the order paper we will not enjoy a balanced and harmonious society.
Justice Hansen just got a recent gong and didn’t he say our justice system needs a “radical rethink.”
Can anybody name a politician with a brain that functions, as I know who needs a gong on the head?
Vote:June 3rd, 2008 at 1:48 pm
Missed the edit – ” list OF priorities” just before Ghosty comes along and attacks like a foaming socialist dog .
Vote:June 3rd, 2008 at 3:04 pm
Based on my own experience, I’m all for having the prosecution’s evidence tested at as many points as possible. All too often the Police proceed on the basis of “throw enough at the courts and some of it’s bound to stick”. In many of the cases I have personal knowledge of, a judge would have read the evidence and thrown it out on that basis, so I was leaning toward supporting the law change.
But F E Smith makes some very good points, particularly about the discovery value of a depositions hearing. There’s no doubt some cases in which a judge reading the depositions would be the most efficient and best serve the interests of justice by minimising the agony of the falsely accused and keeping costs to a minimum. But there are others where it could possibly not work that way.
I winder if there’s a compromise of some sort possible…? Both sides have to agree to the “read only” process? Or it’s applicable only in certain types of cases? Or it can be subject to a (simplified, inexpensive) appeal process? Or something? Any thoughts, F E? Or anyone?
Vote:June 3rd, 2008 at 3:13 pm
GWW – d4j is more correct that “complete and utter nonsense”. You get a two week window in which your trial will be called. Notice as to when it is up is often last minute. Indeed, you can get a phone call asking you to fill a gap at very very short notice.
Deps have to stay. It is a filter and even if matters proceed past Deps there are still the various options under the crimes act to have the charge dismissed (s347 for eg) which is based on the evidence in Deps. It allows defence to explore alternatives that in a risk adverse world where you can be sued for negligence you may not in a trial (Nigel Hampton QC gives an example of two murder accused that where found NG solely because he was able to run a high risk defence at deps) and it also can lead to guilty pleas. I can think of examples where the defence has blown away by the prosecution witnesses and months (and thousands of dollars cheaper) a Guilty Plea was entered.
National might be the tough no crime party it is also meant to be the party that believes in freedom. The state locking people up is the very anthesis of freedom and it is vital that there are many checks and balances in place. As LPD noted above it is better to have a guilty person walk free than an innocent person locked up (the reality is somewhat of a trade off but that’s a story for another time).
Expat – get stuffed on legal aid. It is significantly lower than crown rates, hours are restricted and there is frankly fuck all in it if you want to earn money. It is tokenism designed to give the appearance of a fair go – everyone is ‘represented’. Do you really want to be represented for, say, a Crimes Act Assault in front of a Judge alone by someone who has been paid $300 to prepare? In Chch the going rate for a firm to do a summary fixture is $2k – $5k – depending on hearing time you might get $500 incl GST. The 10% arbitrary figure in the budget is the first rise in legal aid rates for 12 years – it’s a joke and increasingly lawyers are refusing to do it. That has to be good for access to justice.
Vote:June 3rd, 2008 at 3:25 pm
“Or it can be subject to a (simplified, inexpensive) appeal process?”
Talking about the expensive appeal process Rex, one should note that under Labour Court filing fees have increased to the point that makes it impossible for the average person the right of appeal. Just another nail in the human rights of the majority of New Zealander’s. Only the rich can appeal !!! I do wonder how the Courts minister Rick Barker is gong with that directive from the United Nations regarding unlawful gender discrimination in NZ? That didn’t cost me anything to contact them .
Vote:June 3rd, 2008 at 4:37 pm
I support the proposed abolition of Deposition hearings. They are an expensive time wasting process and an often traumatic and prolonged ordeal for victims. I also can’t believe that National oppose it. Their opposition does not give me much optimism that they will tackle waste in process with much vigour,
Vote:June 3rd, 2008 at 5:31 pm
D4J I’m not up with the costs in NZ at present. What kind of dollars are we talking? In Australia you’re talking big money by the time you get to the Supreme Court ($10k on a bail application recently… that worked out to around $15k an hour for His Honour. Nice work if you can get it). But in the lower levels it’s not that prohibitive.
GPT1: a story for another time, perhaps, but one that’s overdue for telling. I’ve considered a book on NZ’s “justice” system but I’m not sure I’m the best person to author it. I’d rather ghost write for a barrister who’s prepared to expose the rot.
Vote:June 3rd, 2008 at 6:48 pm
D4J, congrats on breaking 3700!
Rex, good luck on getting an NZ barrister willing to expose the rot! Although we complain about it frequently and have a wide variety of stories that would most people shudder with horror, we are all to busy seeking ‘preferment’ (that is appointment as a Judge, for those not in the know) to actually put our names to anything that will criticise the justice system too much. Even the recent criticism of the police is mild, compared to what we could actually say, as you will no doubt be all to familiar with.
Appeal costs are so divergent that it is not funny. Most defence lawyers would range between $3000 and $10,000 for a High Court Appeal, depending on type of case and level of counsel (compare the fact that Legal Aid pays up to a maximum of $375 incl. GST on sentence and $500 for conviction and sentence), while for Court of Appeal I don’t think you could expect any change out of $10,000. That is cheap, a lot of the more experienced lawyers will set you back a lot, as you might expect . Again, compare legal aid rate, which I can’t find just at present, but which I have seen bills as low as $900 and as high as $5000. Mind you, that 5 grand was for a day long murder appeal with two counsel, so still pretty good value for money.
Opposed bail application on legal aid is a maximum of $440 plus hearing time.
The more I write, the more I wonder why I am doing this job!
Baxter: deps aren’t that expensive, really. They use JP’s to do most of them, and they are free. The legal aid lawyers are cheap and the cops are on pay anyway. The biggest issue is the court space! And most of them are not traumatic or prolonged. The average deps hearing lasts roughly 2 hours and is no ordeal at all. Only the most horrific murder cases (rape victims, as has been said before, don’t have to give evidence at deps) are truly horrific in some content, and even then it is extremely rare to have a situation where the mother or other non-accused family member has such any part in the actual incident. It is just a reaction to the media reporting a sensational and saddening case. That deps in no way typifies the norm.
Vote:June 3rd, 2008 at 7:35 pm
F E: There must be a few barristers who’ve given up hope of preferment by now?
What about a pseudonym then? I just think it’d sell better as an “insider’s viewpoint”. I’d disguise the protagonist by jumbling his (or her) recollections with those of his colleagues. So one of the cases with which he was involved might be told in the first person, but then another would become one in which “a colleague was involved”.
Over here in Australia we’ve had the Plod raid not only a private art Gallery but the National Gallery of Australia on the hunt for “obscenity” and are muttering about prosecuting news media websites and newspapers who published any of the photographs in question as though they were common pornographers. Then you’ve got the PM, who leapt into the fray shrilly declaring the stuff “disgusting” even though it’s been round for decades and, I repeat, hung in the National Gallery.
Now they’ve made such a fuss of course, you can bet your bottom dollar that some poor sod will end up in the dock having his or her wallet drained by lawyers as the taxpayer funds the other side to the tune of a few hundred thousand at least.
Yet the chattering classes have been drawn into the debate by mention of the word “porn” and caterwauling of a character called Hetty Johnston, whose critique was, and I quote “he has a tendency to depict children naked and that is porn”. Well there you go, then. If it offends Hetty, imagine what effect it must have on some sex-obsessed suburban fruitcake with nothing better to do than police our morals. Oh, wait…
Someone has to expose the “system” for the farce that it is, F E, surely? Your namesake would have had a field day, for a start
Vote:June 3rd, 2008 at 8:02 pm
I might be able think of some who could tell you some good stories under cover of anonymity…. I will find out for you.
I’ve noticed the furore about the photos in Oz and have been appalled by it. Apparently we now need to be protected from ourselves now. That said, my uncle works for Social Services in Queensland and has a very hard time trying to convince his younger colleagues that simply being poor does not constitute child abuse!
This hysteria that follows ‘outrages’ is quite frightening. It reminds me of the huge injustices that were perpetrated by the Athenian ‘democracy’. Or even, if you will, the witch hysteria of 1400 -1700. A large part of the problem is the media, who have a vested interest in keeping the hysteria going, as well as the ill-informed politicians who seek to promote themselves by it. Simon Power worries me greatly, in that regard, as someone who is happy to sacrifice our human rights in order to feed the ravenous mob!
You are right, F E Smith would have made a lot of it- although F E, being a politician as well, wouldn’t have worried about some populism also! I suppose we now see that the defence bar has such little influence with the Justice Department that we are now simply seen as a hindrance to the process of justice (and strangely enough, it was a Justice Department employee who told me that!) and simply a group to be suffered and not encouraged. We all are of the view that the Courts think we advocate for the crimes our client’s are alleged to commit, not for our clients themselves. That is wrong, but when those in power (bureaucrats all) are of that view, then there is little we can do.
The only thing is that we are reducing our numbers at a sufficiently fast rate that in 10 years there really won’t be much of a defence bar to worry the system at all. So, problem solved!
Vote:June 3rd, 2008 at 9:26 pm
Geez F E, you’ve just sent me home to a large glass of single malt and a bout of depression
If you can find a barrister (or barristers who can be clumped together into one entity) then by all means let me know: RexWiderstrom[-at-]hotmail.com
More and more often I’m advising people to be self-represented, with someone like me along as a “McKenzie Friend”. On minor(ish) charges I find most Magistrates are willing to countenance it, to relax the rules a little and even to bend things the other way to help the unrepresented defendant. And it’s no worse than what Legal Aid dishes up… and considering what the prosecution can muster, I (even if I do say so myself) often find it’s fish in a barrel time.
Case in point – I’ve just come back from a case in which a bloke was accused of various unlawful uses of a property. Aside from the fact he was neither owner nor lessee and the “user” was a club -of which the defendant was but a small part – one leg of the defence was that he couldn’t have done all he was accused of (registering business names and websites etc) as he can’t read and write. I described him as “functionally illiterate” and the State Prosecutor jumped all over me suggesting I didn’t have the “expert knowledge” to know if a person could in fact do so.
“In fact,” she said haughtily, “you know no more about it than the next person”. I couldn’t resist a “Rumpole moment” and responded that since the next person in question was her, I’d wager I probably did. Even the Magistrate awoke from her slumber and chuckled. The point being that that was enough to throw the prosecutor into a frenzy of stuttering and paper shuffling, after which she meekly sat down.
Considering the place has been closed down for over a year and thus the whole issue was pointless other than from a punitive perspective, all that I was missing was a pair of oversized shoes and a red nose, I felt.
Vote:June 3rd, 2008 at 9:38 pm
what a good idea with the mckenzie friend! I hadn’t thought of recommending it, but will from now on! Legal Aid only gets given if you are in danger of prison, so most charges aren’t covered, and that will be a good way of encouraging someone to defend charges.
It was the prosecutor who needed the oversize shoes and red nose…
Hope the depression lifts soon. If a large single malt doesn’t help then just try another one… eventually the world will look a better place!
Vote:June 3rd, 2008 at 10:09 pm
The witch hysteria of 1400-1700 – or the Peter Ellis (read gay teacher) hysteria of somewhat more recent times.
The mckenzie friend thing is frighteningly true. Dealing with self-litigants can be a right pain in the ass as the Court bends over to assist them – often to a significantly greater extent than they would had they been represented.
It does remind me of a case where a McKenzie’s friend asked for the case to be adjourned for four years so he could get a law degree!
Vote:June 4th, 2008 at 9:49 am
FE Smith: as regards your point about Simon Power, does he worry you because he’s a lawyer by any chance? As a lawyer friend of mine once told me it’s only 99 per cent of that profession that gets the rest a bad name….
Vote:June 4th, 2008 at 10:36 am
Bearhunter: Boom Boom! No, the worry is simply because he seems to be willing to sacrifice justice for being seen to be tough on crime. While it is easy to score political points with such an approach, it is dangerous to the rest of us. Don’t forget that we are talking about the State making it easier for the State to put people into prison. This debate should be about what actually works, not knee jerk reactions to the case de jour.
Vote:June 4th, 2008 at 12:02 pm
Every one a gem…Anyway, I agree entirely with you. I’ve sat through plenty of deps in my time and while it can be frustrating to go through everything twice, I have also seen cases thrown out at that level, as they should have been. The only thing I don’t like about deps hearings is that because they are mostly heard before JPs, there is a greater chance of them going to trial through a reluctance on the JPs’ behalfs to take the step of throwing out a case, except in egregious cases. Perhaps we simply need a higher standard of JP. Other than that, I actually agree with a lawyer. Christ, how much is that likely to cost me?
Vote: