Judiciary on Criminal Procedure Bill
March 25th, 2011 at 12:17 pm by David FarrarGraeme Edgeler has an excellent blog post on the Criminal Procedure Bill, highlighting some of the comments from the Judiciary on it. Chief Justice Elias has oppossed parts of it very strongly, on behalf of the High Court, Court of Appeal and Supreme Court Justices.
One of the key issues is the proposed requirement for the Defence to signify in advance what actual issues are in dispute. This is of course standard in non-criminal trials. Some say it removes the right to silence.
What I find of interest, and has been reported by Derek Cheng also, is that the District Court Judges (who actually do the vast bulk of criminal trials) are not oppossed to the requirement to signify in advance what issues are in dispute. They do criticise the provisions about drawing adverse inferences from what may be a failure of counsel, but on the main issue is reported as saying:
But Judge Johnson told the committee he supported cost-orders for non-compliance, and the regime that would require the defence to disclose matters in dispute.
“It makes sense for the efficiency of the trial, and it’s not unjust,” he said.
This is in contrast to the view of Chief Justice Dame Sian Elias, who criticised the pre-trial regime as contrary to the defendants’ right not to volunteer information that may help the case against them.
It is unusual enough to have Judges commenting on laws, but very unusual to have different levels of the judiciary putting in oppossing submissions.
Related posts:
- The Criminal Procedure Bill
- Herald calls on National to support Criminal Procedure Bill
- Video links for courts seems sensible
- A criminal obsession
March 25th, 2011 at 12:40 pm
National has abolished the requirement of a unanimous jury as well. One of our constitutional documents, and hundreds of years of legal tradition, ripped up in a regressive move to put more criminals in jail, without regard for the innocent people who will doubtlessly go to jail because of it. Barely a squeak from the press. You get the feeling that National could abolish the Bill of Rights, and the press would still be all
“well, John Key is a very affable fellow, so he must have some very good reasons, ….”
Vote:March 25th, 2011 at 12:53 pm
magic bullet – I think our politically activist judiciary might be more of a concern -
Vote:March 25th, 2011 at 12:57 pm
….unusual….unusual…….and now they get to decide which Maoris can own the coast.
Vote:March 25th, 2011 at 1:02 pm
@magic bullet
That goes 2 ways. I was on a jury of an incest case some 10 years ago. It came down to one person’s word against the other. No medical evidence, no photo evidence, no complaint at the time, no corroboration from anyone.
In the end, because there was nothing to hang the guy on beyond reasonable doubt 11 of us were going for a not guilty verdict. We would have preferred “not proven” because we were all very suspicious but there is no such thing here. The 12th member refused to consider anything other than a guilt verdict simply because ‘she wouldn’t have made the complaint if it wasn’t true’.
The result was a hung jury and a retrial.
Vote:March 25th, 2011 at 1:07 pm
What grates me most about trials is that the prosecution seems to think they are there to get a conviction, and the defence seem to think they are there to get an acquittal.
To my mind they are both there for the same purpose – to present the truth. It is then up to the judge or jury to decide the guilt.
I think the right to silence is abused. The accused should be required to answer questions. If the interviewer or prosecutor fail to ask the right questions well that’s another matter. The Kahui twin case is the most manifest abuse of silence
Vote:March 25th, 2011 at 1:28 pm
Of course, rouppe, everyone person suspected of an offence should be forced to provide the evidence to convict themselves.
Well now, don’t you worry, Mr Power is way ahead of you. Removing the right to silence is already under way. It will take time, but it has started.
While you are on the subject, don’ you think a person should have to prove themselves innocent, rather than the prosecution prove thselves. Guilty?
Vote:March 25th, 2011 at 1:36 pm
Aagghhh! Damn smartphone…
Vote:March 25th, 2011 at 2:18 pm
F E Smith
Another moron that makes a so-called quote that is complete fabrication.
Witness should be compelled to answer questions. I didn’t say they should be compelled to disclose anything they weren’t directly asked. But being able to sit there and refuse to answer questions – a la Chris Kahui and Macsyna King – is wrong. By your logic, everyone that commits a serious offence should not be convicted simply by refusing to say anything.
By being compelled to answer, you are either forced to lie, or confirm suspicions. If you’ve not done anything, then you can’t provide evidence to convict yourself can you?
I wonder what you’ve done that you’re hiding…
Vote:March 25th, 2011 at 2:46 pm
Gee, such cynicism rouppe! I disagree with you so I must have something to hide, eh? Sorry to disappoint you but actually I am a criminal lawyer, so have a small interest in this area.
I still disagree with you, though. No person should be forced to confess. Anyway, in the Kahui case do you think the police would have believed Kahu if he had said he didn’t do it? Do you really think the police will forget to ask if the person they are interviewing is guilty of the alleged offence? Or even if they are guilty of any other offences?
You may as well make it illegal not to confess to any crime you might have committed!
Vote:March 25th, 2011 at 3:38 pm
The compulsion on the Prosecution to disclose all their evidence has only existed for about 25 years and broke hundreds of years of tradition. It swayed the scales heavily against a successful prosecution as the defence now has up to 2 years to fabricate a circumnavigation of the prosecution case. The proposed change like many others Power has instituted will even the scales and allow the truth to emerge.
Vote:March 25th, 2011 at 5:04 pm
rouppe:
Leaving aside the legal niceties – like the fact that thousands of judges at all levels of the courts and thousands of lawmakers in all the various nations that base their criminal justice systems on the British model have found the right to silence a fundamental protection worth preserving over hundreds of years, and yet a suburban conveyancer from Palmerston North knows better than all of them – let’s look at it from a practical perspective.
How, exacty? What form of torture do you prefer? Electrodes? Bamboo shoots? Or the traditional methods, like hot irons or a ducking stool?
Any knowledge of the validity of confessions obtained under duress? Ever read the “confessions” signed by armed forces personnel captured by the enemy? Think they’re valid, do you?
Vote:March 25th, 2011 at 6:19 pm
I’ve worked as a law clerk for both district court and high court judges. The difference in views can be explained by the quantum of work that each deal with and by the quality of advocates appearing before them. Highly qualified and experienced counsel in the higher courts means a lot of the work is done for the judge. In the lower court, its not the case and the quantum of work to be dealt with means expediency is the rule rather than considering at length and at one’s lieisure finer points of law.
Vote:March 25th, 2011 at 6:34 pm
Rex, you beat me to it!
Backster, your view is still very current amongst your former comrades in the NZ Police. However, allowing the prosecution to ambush the defence, as was the norm before disclosure was required, did not and does not lead to the truth coming out. Instead, it allows the prosecution evidence to go largely untested because the defence does not have the time to properly and fully address the prosecution case. And it is no good saying, as some (District Court) judges do, “ask your client, they will know the truth”, because often the client doesn’t, either through intoxication or sometimes actual innocence. Requiring the prosecution to disclose their evidence did not tilt the balance in favour of the defence at all, instead it leveled the balance a little (not completely). Gone are the days of the defence lawyer getting the prosecution evidence at the start of the hearing and that is a very good thing when it comes to justice being done.
But, while you are proposing retrograde steps, why don’t you propose that we remove the right of the convicted to appeal? After all, that has only been possible for just over 100 years. Or perhaps the right of the defendant to speak in his/her own defence? That has been possible again for only just over 100 years… Oh, hold on, you will want the defendant to be forced to give evidence, won’t you? Amazing how we can do a complete U-turn in 100 years, isn’t it?
Rouppe proposes we remove the right to silence, and Rex makes valid points on that.
I have read Graeme’s blog post on the bill, and confess that I have not read the bill in its entirety. However, I make a couple of points here:
Firstly, there is a very large difference between the District Court judges and the High Court judges. Without denigrating the intelligence of those who sit on the District Court bench (some of whom are my friends), I can say that the High Court is usually a significant step up from the District Court in legal talent sitting on the bench. Moreover, the District Court judges are more often (in my view) concerned with procedure and how to be efficient than with what may be seen by some as esoteric, and by others as irrelevant, legal values. When the High Court judges say things that disagree with the District Court judges, I can say that I will pay far more attention to the High Court judges than the District Court judges.
Secondly, and assuming I have read things correctly, the biggest efficiency gain in the bill will be the presumption that all cases from Category 1 to Category 3 will be judge alone, rather than jury trials, unless the defendant elects otherwise in Category 3 cases. While most people assume that the increase in jury trials has been because of the defence electing trial, in fact it is the Police who cause the vast majority of jury trials by laying charges in indictable form. Preventing the police from electing trial at the outset will, in my view, reduce the number of trials by quite at least a noticeable percentage.
EDIT: Sean, you make a very valid point.
Vote:March 25th, 2011 at 9:12 pm
>The compulsion on the Prosecution to disclose all their evidence has… swayed the scales heavily against a successful prosecution as the defence now has up to 2 years to fabricate a circumnavigation of the prosecution case.
Hmm. Leaving aside the presumably unintended implication of that that all defendants are guilty and their lawyers are complicit in lying to the courts…
“Mr Green, you are charged with theft.”
“Theft? What am I supposed to have stolen? When? Who says it was me?”
“You’ll find all that out when you stand up in court.”
Both sides need to be fully prepared, or you wind up with one or other seeking adjournments, which wastes court time.
Although key witnesses being found at the 11th hour and someone walking into the courtroom and whispering to the lawyer, who then tells the judge: “I’d like to call…” makes for far better fictional TV dramas
Vote:March 26th, 2011 at 9:27 pm
Smith: A certain former superintendant of Police became a criminal lawyer while behind bars. Claiming to be one isn’t very impressive. Being a legal-aid-chaser also is less impressive than being a hooker.
Smith and Widerstrom: If you’re so enamoured with the British system of justice all those hundreds of years ago, I presume you favour trials of witches, the last of which was held only 300 years ago.
Does it sound plausible that in the land that held the last trial of witches only 300 years ago, that a defendant dragged before a magistrate those hundreds of years ago would be allowed to be silent, or if remaining so, that it would not be a virtual admission of guilt? Not a good guide to high-quality justice, fellas.
Again, if one is only telling the truth what harm is there in telling the truth in court? Case in point:
If a criminal trial ensues in the Darren Hughes case, by using the term “forced to confess” (Smith) you are already assuming that he is guilty! If he is indeed innocent of any crime what harm can possibly come from him saying “I offered the couch to the plaintiff to sleep on, I was asleep in by bed alone. When I woke up he was gone.”
Darren would either be telling the truth, or telling a lie. If he tells a lie, and there is evidence that shows he is lying, then that is surely what a trial is there to establish? Avoiding being caught in a lie by simply refusing to answer any questions is not a win for justice.
Rex: who is this Palmerston North conveyancer? If you think I am such then your powers of investigation suck.
Vote:March 27th, 2011 at 12:41 am
I think we should bring back the traditional common law “wager of battle” (trial by combat for serious crimes). The last such battle trial in the UK being Ashford vs. Thornton 106 ER 149, unfortunately following this trial the procedure was abolished by statute.
Interestingly given the inheritance of British common law and that the colonies (& dominions) specifically did not adopt British criminal procedure & associated statues wholesale (to allow each to develop it’s own variant) I don’t believe the Criminal Court Procedures (Trial by Combat and Criminal Appeal) Repeal Act was ever adopted in NZ (as an imperial Act) and I don’t know of any NZ legislation specifically abolishing it, therefore this option must still be possible to murderers, rapists, etc. The only problem I see is that the writ of “Criminal Appeal” is no longer available (note it did not originally mean appeal to a higher court from a criminal trial but the absolute right to a private criminal prosecution, another sad change to common law). The other interesting fact to note is that the death of the participant (the accused or their lawyer or the plantiff or their champion) in a trial by combat in accordance with the court rules is in fact not murder but entirely lawful, the only non state sanctioned killing allowed.
I believe this could open a whole new branch of profitable (& entertaining) legal court practice.
Vote:March 27th, 2011 at 2:00 am
The onus is on the Crown to prove their case beyond a reasonable doubt.
They make the allegations and they should prove them.
The defence should NOT be required to say anything with regards their defence before or even during the trial unless they choose to do so.
Efficiency at the possible cost of justice is abhorrent and ridiculous.
But anything is possible in lil old farming isle.
Vote:March 27th, 2011 at 7:56 am
I had 25 years prosecuting people. The best thing that happened regarding prosecutions in that time was the requirement for us to fully disclose.
1. It enabled pre-trial discussion with the defence on points ,that were often very minor and could be cleared up with a phone call to each other ( there were exceptions with new or very insecure counsel or coppers who thought they were clever by fucking around and delaying disclosure)
2. With all our cards on the table I found and I think its been born out here before is that the number of not guilty pleas actually decreased ( this may have changed I’ve been out of the game for 7 years)
3. Removal of the right to silence is wrong, Power is in error here just like the removal of the provacation defence, just becuase Wetherston is a loathsome shit, his trial did not justify the removal of this defence provision .
4. The only thing that should change in our system is get rid of juries, 12 good men and true firstly, are bloody hard to find, and its even harder to find them when there is a recession so you end up with 12 pensioners, who have never dreamt what human beings are capable of doing to each other
Vote:March 27th, 2011 at 8:49 am
Pauleastbay
I’m betwixt and between on the provocation defence. If you could rely on judges to be sensible then I’d say retain it. However the fact that they accepted provocation from Wetherston suggests they will accept provocation as a defence just because someone looked at someone else the wrong way. “In my culture, your honour, that is provocation”. “Oh, righto then, not guilty it is!”. Some of their decisions seem devoid of common sense.
Evidence alone has put innocent people behind bars before, so that’s not a good reason to allow silence. It has been grossly abused – the Kahui case being an obvious one. Neither of the prime suspects could be questioned. Both made statements that the other did it. In the end two small babies that had been obviously abused were not given justice. If some other way to ensure justice is served in examples such as that, I’d love to hear it.
Vote:March 27th, 2011 at 9:27 am
Rouppe
If we take the emotion out of the Kahui case ( i.e. kids dead totally loathsome etc ) the fact remains,” you can’t win em all”
Any cop, prosecutor will tell you the same thing.
At the end of the day if you knock off and can say we have investigated this= to the best of our ability as an organization then thats it.
Its mentioned above, – What are you going to to do to make Kris Kahui talk? Fine Him- he has nothing – put him in jail for contempt – thats better than a life lag.- torture – I know I could probably do it but society has become soft since the dark ages
Like I say , take the emotion out and imagine the Tax Department were after you and by shutting up they could do nothing and they missed out on a couple of grand that they would only end up in the hands of the likes of the Kahui’s anyway.
I wager in this scenario the right to silence is gold and I know I would want to use it
Anyway in your comment above you say they both made statements, so they didn’t remain silent. So it’s not a moot point regarding this case. Western countries have a legal system not a justice system, if it was a justice system the morality of society would have to be factored into evidence or the Judges summing up, and you just can’t go there because of the fractionalization of our democratic society.
Provacation was put forward as a defence by Wetherston, it was rejected by the jury and he is serving a life lag- he wasn’t aquitted because of his ludicrious attempt to justify his actions
Vote:March 27th, 2011 at 10:24 am
I had ten years or so defence experience and I have to say, I agree with Pauleastbay, juries should be abolished.
They are kind of ridiculous in my experience and too easily manipulated by personalities and look and so on of counsel.
The problem is not with the conviction end of the system so much though (I mean, defence disclosure) it is with the sentencing end of things.
Keep the standard of conviction the same but stop pussy footing around with the sentencing aspect.
One thing living in China for ten or so years also taught me, sometimes people should just get a bullet, literally.
But of course that is fantasy world in lil ol farming isles.
Until then we will be debating defence disclosure and Maori foreshore rights until God knows when.
Vote:March 27th, 2011 at 1:32 pm
Rouppe, your gift for hyperbole is astonishing! Firstly, Who was the Superintendant of Police that became a lawyer while behind bars? It wasn’t Rickards; he was acquitted. Secondly, if a defendant was in fact guilty then requiring by law to answer would be forcing them to confess if they were to comply with such a law. No other evidence would be required for a conviction. Of course, people have been known to confess when they are innocent, so you can’t always rely on what may seem a clear cut confession. Thirdly, your burning of witches example is just stupid. Rex and I support the concept of civil rights within the justice system. These rights were hard won and were usually implemented by the judiciary on the face of opposition from the politicians, or by reformist lawyers in the UK parliament, over the opposition of people like yourself. On fact, your argument against the right to silence actually means that you are the regressive one who would be more likely to support the burning of witches. That was a weird argument on your part, by the way. And, fourthly, does your criticism of legal aid lawyers extend to the Crown prosecutors, whose firms also receive public funds to undertake a criminal law practice? They are no different from the defence lawyers in that respect. Or what about the lawyers at the Public Defender? After all, their pay also comes from legal aid.
Vote:Mr Carpenter, trial by combat was a Norman tradition imported to England in 1066 and therefore predated the common law. Indeed, the development of the common law led to the form falling out of use, until the surprise that was the Asford case. Oddly enough, it was used to determine property disputes as well as criminal cases.
March 27th, 2011 at 3:54 pm
Pauleastbay
I find that kind of sad.
Your IRD example is interesting because if you don’t front up and provide the documentation to refute IRD’s position then you get eviscerated by them… Also, if an IRD metaphor is to be used, I’d like the Kahui case as millions owed, not a few thousand. One would expect the prosecution to try a bit harder.
Regarding the comment about statements, I’m assuming they made at least initial statements before clamming up. My position about being required to answer questions pertains to during trial. Was that not obvious…?
Still like to hear a suggestion on how to get proper statements from the two Kahui’s. Cause I’m not happy with a situation whereby proper examination of the prime suspects isn’t possible, and the result is “oh well, gave it a good crack, never mind”
Vote: