The Criminal Procedure Bill
September 13th, 2011 at 7:46 am by David FarrarDerek Cheng in the NZ Herald reports:
The Government’s stalled reforms of the justice sector have been given an unusual lifeline with a proposal to take the controversial issue of the right to silence out of Parliament’s hands and leave it to a group of legal experts.
The Criminal Procedure (Reform and Modernisation) Bill is likely to have its second reading this week, having spent a month on the order paper while Justice Minister Simon Power sought the numbers to pass it.
The bill is a shake-up of the criminal justice system and includes the removal of an accused’s right to remain silent and not have that held against them.
As it stands, the bill would require the defence to disclose to the prosecution before a trial all issues in dispute. Failure to do so would enable a judge or jury to infer that the accused is more likely to be guilty.
At present, a defendant can say nothing, leaving the case to the prosecution to prove beyond reasonable doubt.
The Labour, Green and Maori parties are strongly against the bill in its present form, but the Herald understands Mr Power has won the support of United Future leader Peter Dunne and Act MPs Hilary Calvert, Heather Roy and Sir Roger Douglas by removing the disclosure regime from the bill (Act MPs are not “whipped” to vote as a caucus).
The ability of a judge or jury to infer a greater likelihood of guilt from non-compliance would also be removed.
A new clause would allow the Rules Committee, a panel of legal experts chaired by Chief Justice Dame Sian Elias, to decide if a disclosure regime should be enforced, and if so, how.
I understand there is considerable tension in ACT over this bill. If Calvert, Roy and Douglas vote for the the bill, they will be effectively crossing the floor against their party as the ACT Board has voted to oppose the bill, and it is also opposed by Leader Don Brash, former Leader Rodney Hide and Parliamentary Leader John Boscawen.
It raises one of the criticisms of MMP, where you have List MPs voting against the wishes of their party.
Now I have to say that by referring the disclosure regime to the Rules Committee, it almost guarantees it will not proceed as Dame Sian submitted on behalf of the high court, appeal court and supreme court judges against the disclosure regime. Interestingly the District Court Judges (who actually hear most of the trials) were in favour of a disclosure regime.
But even though it is unlikely to proceed, there are valid constitutional issues about whether something as fundamental as the right to silence should be decided by the High Court Rules Committee, rather than by Parliament itself. You normally delegate technical non-controversial issues to outside bodies – not issues affecting the Bill of Rights!
The other issue is about these changes being negotiated outside the select committee process, rather than through the select committee. Substantive changes at the committee of the whole stage are best avoided if possible.
Related posts:
- Judiciary on Criminal Procedure Bill
- Herald calls on National to support Criminal Procedure Bill
- Criminal Procedures Bill
- Search and Surveillance Bill rewrite
September 13th, 2011 at 7:56 am
Seems a bit extreme – has there been many perverse outcomes as a result of the right to silence? How many western democracies have it?
Vote:September 13th, 2011 at 8:24 am
Why do have to put up with this shit, another slippery deal slid through when no one is watching, how much erosion of our rights is going to happen before we finally get rid of Power, and Peter Dunne this scumbag would sell his mother to a knock shop he thought it would help him retain the baubles of power.
Vote:As for Douglas did someone wake the senile old fart from his slumber or did did they assume the snoring was a gesture of agreement.
September 13th, 2011 at 8:27 am
How come this is a criticism of MMP and why only for list MPs? Electorate MPs can also vote against party wishes, even more so than list MPs.
One of the crticism of list MPs was always that they are only “accountable” to party bosses. Now the problem is that they don’t obey their party bosses.
Vote:September 13th, 2011 at 8:28 am
DPF: “Substantive changes at the committee of the whole stage are best avoided if possible.”
Typically National I would say. They can do behind-door deals with Maori on the foreshore and seabed, almost foreclosed on private schools, and are borrowing like mad from our children’s future.
Vote:September 13th, 2011 at 8:31 am
What? Same as eszett says. I think one of the biggest criticisms of MPs is that they dutifully follow the party line far too much.
Parliament should be a House of Representatives, not a Party Dictate.
Vote:September 13th, 2011 at 8:46 am
It is time that EVERYONE (especially MPs) read Gary Gotlieb’s OpEd in the NZ Herald yesterday.
Vote:September 13th, 2011 at 9:10 am
@flipper – yesterday? I can’t find it. Are you sure it was yesterday’s Herald?
Vote:September 13th, 2011 at 9:12 am
HILARY CALVERT IS SUPPORTING THIS SHIT? SHE IS A BLOODY LAWYER AND A JUSTICE SPOKESPERSON FOR ACT. I TRULY ADMIRE DON BRASH, JOHN BOSCAWEN AND RODENY HIDE’S LOYALTY TO OUR FUNDAMENTAL PRINCIPLES AND FOR STANDING UP AGAINST THIS IRRATIONAL 660 PAGES OF BILL. POWER NEEDS TO DO MORE CRIMINAL LAW COURSES TO GET EVERYTHING RIGHT. I STILL DO NOT GET WHY CALVERT IS SUPPORTING THE BILL, SHE IS NOT EVEN GOING TO BE IN THE PARLIAMENT NEXT YEAR AND HAS NOTHING TO LOSE, WHY ON THE EARTH SHE SHOULD BE EVEN THINING OF SUPPORTING SUCH A DISASTROUS, COMPLEX, INEFFICIENT, PIECE OF LEGISLATION, SPECIALLY WHEN THEY KNOW AND HAVE BEEN INFORMED THAT IT DID NOT WORK AT ALL IN ENGLAND AND IT COST THE GOVERNMENT SO MUCH MORE MONEY AND MORE INNOCENT PEOPLE GOT CONVICTED.
Vote:September 13th, 2011 at 9:19 am
I’ll echo eszett and Pete George here.
Individual MPs voting against the rest of their party is an issue under any electoral system where parties play a role, not just MMP.
In Australia under their AV system.
In other countries where crossing the floor is essentially a defection to the other party, they have entire lists. Canada’s FPP.
British FPP:
In RSA as they have a proportional system, they have outlawed switching party allegiances.
I’m not sure what the rules would be in NZ about defecting to another party altogether, but there’s nothing to stop ACT kicking out Roy, Douglas and Calvert (except the fact that it would severly weaken the ACT caucus).
Vote:September 13th, 2011 at 9:22 am
I agree that the proposed compromise over the right to silence looks odd, to put it mildly. But I don’t think you can blame MMP for the conduct of Calvert & co in terms of voting against the wishes of their own party, particularly if there is no party whip. ACT lost any means of controlling Calvert or Roy when it decided not to reselect them, and the position would be exactly the same if they had electorate seats. Douglas is retiring anyway, so the same goes there. Basically, they have no means of enforcing discipline, and a leadership which has no reasonable expectation of their support. So if they genuinely support the Bill, they have very little reason to vote against it.
Vote:September 13th, 2011 at 9:34 am
Does ‘right to silence’ benefit the community at large in modern society, or is it just a potential ‘get out of jail’ card for crims.
For example:
1. A truly innocent person would wish to explain his or her situation to help with inquiries. Unfortunately, such a person increases risk of conviction by not keeping silent.
2. An accused person claiming self defence or defence of others effectively has no right to silence.
3. In a rape trial where ‘consent’ is at issue, surely the accused should be required to give his side of what happened and be coss examined accordingly.
4. An accused sometimes seeks a re-trial on some pretext or another (usually incompetence of defence lawyer), the underlying reason being having exercised right of silence first time round, the accused would like to give evidence second time round.
Right to silence does seem to be a necessary part of the adversarial system of criminal justice where the prosecution’s objective is to get a scalp within the rules of the game. If right to silence was abolished, there would need to be a big change on the part of prosecutors. They should be askng the question ‘is the accused really guilty’ rather than ‘can we probably secure a conviction’.
My inclination would be to give an accused the option of a traditional trial with right to silence or an inquisitorial trial with no right to silence where all parties are expected to get to the bottom of the matter in an efficient manner.
Vote:September 13th, 2011 at 9:45 am
“It raises one of the criticisms of MMP, where you have List MPs voting against the wishes of their party”
Agree with all the others who have questioned this. MMP gets blamed for leading to too much party unity/discipline and now you are blaming it for leading to too little. Correct me if I’m wrong but the ACT party made a decision a while ago to allow their MPs to vote how they please on legislation that is not a part of the confidence and supply arrangement with National. I think different ACT people voting different ways reflects the diversity of views within ACT on this issue. If ACT voters aren’t happy with the way the party dealt with the issue then they can factor that in when deciding who to vote for at the election. Likewise, if ACT party members don’t like the current ability of MPs to vote differently then they can lobby for a change to a more rigid whip system.
Vote:September 13th, 2011 at 9:48 am
Blaming the electoral system for this is going much too far.
The real problem here is that we have invested our Parliament with far too much power when it comes to fundamental rights. We should thus not be surprised when our MPs, however they are elected, use that power for ill.
Rather than a back-door attempt to provide judicial review of parliament, we should be working on having a bill of rights with teeth.
Vote:September 13th, 2011 at 9:51 am
Peterwn,
you forget that criminal charges are brought by the Crown, not at the invitation of the accused. It is therefore the responsibility of the Crown to prove the allegations it makes. Why should the accused person be required to assist the Crown in proving the charges against them?
On a point by point basis, though:
1. Not at all. A truly innocent person can stay silent for all sorts of reasons. One is to avoid being bullied by an interviewing officer. Some people do not interview well. Some are easily confused especially if they have an intellectual disability or a lower IQ. Some people just don’t know what happened. And some guilty people happily accept an interview and then lie their way out of trouble.
2. Not really, if they can call other people to give evidence on their behalf. It depends on the circumstances of the incident.
3. Why? If the accused can call evidence of consent, why should they give evidence? See further the points I make under 1 above.
4. This one is just completely untrue. Incompetence of the lawyer is an extremely rare reason for appeal. A mistake by the lawyer is less rare, but still not a common reason for appeal. Can you please explain where you get the information that the ‘pretext’ for appeal is usually the incompetence of the lawyer? Also the idea that they would like to give evidence the second time around? Anecdotally I can tell you that it us often the opposite- they would like retracted their statement and not given evidence if they get a second go. Moreover, most cases don’t go to appeal, so where do you get all of this information from? Sources, please.
Contrary to popular opinion, most suspects do not exercise their right to silence. Most give a statement. Sadly, many shouldn’t give a statement. I have seen cases where the only evidence produced against the defendant was the defendant’s own statement. Is that how you want to conduct the criminal justice system? Where the defendant is the main prosecution witness?
We have the right to silence for very good reasons, and we should keep it.
And, re your last sentence, can you please explain to me how you think an inquisitorial trial works? I am interested to know.
Vote:September 13th, 2011 at 9:57 am
A bill of rights with teeth will not solve the problem of politicians going mad, destroying fundamental rights and freedoms that have centuries of tradition behind them. What’s far more important is voting in people with impeccable moral character, because every single circumstance cannot be worked out in advance. It’s like a computer program, you can’t program in contingencies for the future – you just don’t know what is going to happen. We have to rely on good, sensible people in power – not complete lunatics seeking to make their mark.
Vote:September 13th, 2011 at 10:00 am
The Justice imbalance can be traced to evidence act reforms instead of relying on English case law and the four exclusive rules,and especially the requirements on the Prosecution to disclose all their evidence while the Defence can keep theirs secret and have up to two years to find a way around the disclosed Prosecution evidence.We have seen examples (Bain retrial) where dubious overseas experts are produced by the Defence at the last moment to negate expert ballistics, medical prosecution experts. Much is made of the tradition of the ‘right to silence’ but that right in New Zealand is no longer the same as the source of the English tradition. In England the offender is warned that “If he refuses to answer when questioned on something he later relies on in court it will be detrimental to his defence.” In NewZealand he is warned that he does not have to say anything but anything he does say will be given in evidence. That is a world of difference.
Peterwn. The only way your inclination would work in respect to the guilty would be if the jury could be told that they were given the option and chose to remain silent. At present no comment can be made on their silence.
Vote:September 13th, 2011 at 10:08 am
Is there any group less connected to the views of the general population than a group of “legal experts”? These judges have been ignoring constant calls to actually punish offenders, instead feeling the need to act as highly-paid social workers and offender advocates.
Vote:September 13th, 2011 at 10:21 am
FE Smith – “Why should the accused person be required to assist the Crown in proving the charges against them?”
I’m inclined to agree, as the onus in an adversarial system in on the prosecution to ‘win’ the case, so a smart prosecutor seeking to badger the defendant rather than reveal the truth may well place him at an unfair disadvantage.
On the other hand, if the judge himself was empowered to question the defendant in an inquisitorial manner, I would have no objection.
Vote:September 13th, 2011 at 10:23 am
Backster,
Can you please tell me the basis for the two years assertion? Is there some sort of statutory right that the defence have that I am not aware of? You know, the defence has up to two years to consider the Prosecution case or something?
Your old style police attitude goes completely against a fair justice system. The old way of the defence finding out what the content of the allegations were at trial was unjust and most likely lead to many miscarriages of justice. If the Police are confident of their case then what have they got to hide? At the same time, why should a defendant assist the Police in building the case against themselves?
Your views would see the defendant having to disclose everything to the Police and the Police being able to show nothing at all to the defence until trial.
With regards the English situation and the warning, the NZ right to siilence is the classical right to silence that was handed to us by the English legal system. The English Parliament changed their right to silence in the 1990s, and for the worse at that. The 1997-2010 Labour government then made it worse by tilting the playing field in the favour of the prosecution. I assure you, for the most part the recent changes to the English system are not ones that we should be following.
Tristanb,
What makes you say that? I live in the community. My family lives in the community. My colleagues live in the community. We have the same pressures as you. We can be victims of crime, the same as you.
If you actually went and watched the Courts in action, rather than simply getting all of your information from the newspapers and their selected examples, you might see that your assertions are completely wrong.
Vote:September 13th, 2011 at 10:25 am
Scott,
At what point would the defendant have to answer questions from the judge? The investigation or the trial?
And who says the judge is any good at cross-examination anyway? The best cross-examiners are generally defence lawyers, because we get the most practice at it.
EDIT: You do know that judges can ask questions at trial, don’t you? If you did know that, what questions would a judge ask that a prosecutor couldn’t? What you are really advocating is not that a judge should be able to question a defendant, but that the defendant should be forced to give evidence. Unless you want the judge involved in the investigation, in which case you want to force the defendant to make a statement.
Vote:September 13th, 2011 at 10:32 am
Actually, that is completely and utterly wrong. The rules of professional conduct says that prosecutors
and must
and
The case law says that they must be ‘impartial ministers of justice’, that they are not to strive for a conviction.
Neither side is allowed to ‘badger’ witnesses. Both sides must act with consideration toward the witness. And the judge is there to enforce that.
Vote:September 13th, 2011 at 10:34 am
F E Smith – “At what point would the defendant have to answer questions from the judge?”
I don’t know. I think that a problem may have been identified with the current system which gives the defendant too much protection, so the bill is attempting to tinker with the current adversarial system rather than change it completely. Perhaps some discretionary inquisition would be a better fix, the process of which would be formulated by wise, experienced heads such as yours in this ‘panel of legal experts’
Vote:September 13th, 2011 at 10:35 am
Anything as fundamenat as this should not be left to political or legal elites.
In a democracy it is the people who should decide.
Referendum is the answer.
No Upper house,urgency,cabinet dictatorship,non binding referenda,MMP….all give disproportionate power to elites and minorities.
Our constitution is very weak in danger.
Vote:September 13th, 2011 at 10:39 am
In what way is the right to silence ‘too much protection’?
EDIT: Oh, and thanks, but “wise, experienced heads such as (mine)” wouldn’t get a look in. You can guarantee that the MoJ would stack the panel with patsies. The MoJ hates defence lawyers.
Vote:September 13th, 2011 at 10:39 am
F E Smith – “Actually, that is completely and utterly wrong.”
In theory yes, but in theory, you wouldn’t have to stand and say “Objection, badgering the witness” to which the Judge replies, “Sustained. The jury will pretend that never happened.”
edit: yes I did get that from American TV
Vote:September 13th, 2011 at 10:43 am
F E Smith – “In what way is the right to silence ‘too much protection’?”
In that the defense is able to characterize the defendant in a favourable light, without the prosecution being able to challenge that directly.
Vote:September 13th, 2011 at 10:44 am
Scott,
We don’t say ‘objection’. That is what they say in American TV shows. And we don’t really use the word ‘badger’ either. Not much, anyway.
And the judges definitely don’t say ‘sustained’. They are more likely to say ‘I agree’, or similar.
NZ trials are a bit more genteel than what you see on American TV shows.
Ha ha! I like your edit! But you may have grasped some of my exasperation with the level of knowledge of the general public and where they get it from!!!
Vote:September 13th, 2011 at 10:50 am
Just who do you think is leading the evidence that is trying to prove the defendant committed a crime? The prosecution, that is who. I think you have this backwards- it is the prosecution that starts the process of trying to portray the defendant as a criminal, not the defence or the public.
But think about this for a moment- the defence is not required to portray the defendant in a favourable light at all. In fact, we usually don’t have to. Our focus is on the evidence- does it prove beyond reasonable doubt that our client committed the offence? Our job is to test that evidence. Portraying our client in a favourable light is, as I said, not usually necessary. And the prosecution is most definitely able to challenge that. They are not limited in the witnesses they can call, and if the defence leads evidence for which the prosecution can bring rebuttal, then the prosecution usually does, although they tend to try to do it in advance.
But don’t forget that it is the prosecution that is making these accusations, that is trying to have my client punished. The prosecution by no means the helpless victim of a court sanctioned legal mugging. It has exactly the same evidential rights as the defence, other than having the onus of proof, and has a (usually pro-prosecution) judge to make sure that the trial is fair to both sides.
Vote:September 13th, 2011 at 10:53 am
Under 122 (1A) of the District Courts Act 1947 the power to make rules of procedure for criminal jurisdiction conferred by any other Act lies with the Governor General in Council. In practice that means it lies with the Minister of Justice and the Ministry. The Rules Committee has no statutory role in the making of rules under this process. This jurisdiction currently includes the vast range of criminal jurisdiction that is conferred by Part 1 of the Summary Proceedings Act 1957. That includes summary jurisdiction, jurisdiction in relation to committal for indictable offences, and much else besides.
Delegation of power to a non-elected specialist body is a well-recognised tool of government, but only for non-controversial technical matters. There are many bodies empowered to determine the temperature of shop refrigerators and the colours of electrical wiring and all the other details of everyday life. There is no precedent for fundamental rights to be determined this way. It is constitutionally objectionable to turn the power to infringe fundamental rights over to non-elected decision makers who do not have to consult or subject their decisions to public scrutiny.
Vote:September 13th, 2011 at 10:53 am
F E Smith – Fair enough. Just pushing my inquisitorial barrow. Thanks for the info.
Vote:September 13th, 2011 at 10:58 am
Actually, I’ll give one of my favourite examples on the objection point:
In a trial I was involved in, a police officer began to give opinion evidence on (if I recall correctly) DNA evidence, something that he wasn’t qualified to do. One of the other lawyers, a very experienced defence lawyer, simply rose to his feet and said ‘Your Honour, the witness has not qualified himself”, referring to the requirement that expert witnesses set out their qualifications in Court so that the Judge can be satisfied they truly are an expert. The judge responded by asking Crown Counsel if the officer was qualified, and when told no simply asked Crown Counsel to move on. But he did tell the jury to ignore the opinion that the officer had expressed, because he was not qualified to give it!
As I said, rather more genteel than jumping to one’s feet and shouting ‘I object’. Tempting as that may be!
Vote:September 13th, 2011 at 11:00 am
F E Smith
Ironically, I think your doing a great job characterizing the current system in a favourable light. If I do anything bad, and don’t want to talk about it, I’ll certainly look you up.
Vote:September 13th, 2011 at 11:01 am
Scott,
if you have an argument in favour of the inquisitorial process then I am most happy to hear it and discuss it. That is what this is all about. But which inquisitorial process (there are several variations) and in what situations?
It is all very well just to say ‘it should be inquisitorial’, but without a description of the actual process to be used, that just becomes a ‘grass is greener on the other side’ style argument.
But if you have examples, then, please, I am only too interested. Believe it or not, I actually find this all very interesting. This isn’t about me defending tradition as much as it is me believing that the adversarial system is actually better than the inquisitorial system!
Vote:September 13th, 2011 at 11:13 am
F E Smith
My support for a change to an inquisitorial system, is based on my admiration for the concept of “Reason”, referring to the capacity of human beings to make sense of things, to establish and verify facts, and to change or justify practices, institutions and beliefs through rational discourse, *without the notion of winning* to muddy the waters.
I believe that this approach is more likely to establish truth, and therefore a sounder base from which to administer Justice, as society has defined it.
edit: The process to establish this philosophy is beyond me, and best left to practitioners of law.
Vote:September 13th, 2011 at 11:19 am
I think in our rush to reform the justice system we still need to take time to think carefully about the implications of the changes we propose. What sounds good in theory does not always translate so well into practice and this bill appears to be a prime example. The Law Commission and the Ministry of Justice should be listening to the concerns of those on the “front line”. We also need to heed the lessons learnt by others. What set out to be a process of simplification in England has resulted in an increasingly complex and costly criminal justice system, the rules of which are often disregarded by those who have to work within it. If the English experience is anything to go by, any savings brought about by these reforms may pale in comparison to what we are actually sacrificing.
Vote:September 13th, 2011 at 11:30 am
Scott,
While I admire your reasoning, I think your concept of the trial is slightly askew. The trial is about evidence, irregardless of whether the trial is adversarial or inquisitiorial. Establishing and verifying facts is exactly what the process does. We tend to equate facts with truth, so that should mean the same thing.
What I think most people are trying to achieve when they argue for an inquisitorial trial is to remove partisanship from the trial process. What they would appear to have is a process where all examination at trial is conducted by the judge, with no input by prosecution, or, if they have input by the prosecution, then no input by the defence. Some want to have a prosecutor to represent the state and a separate, state funded, lawyer to represent the ‘victim’, effectively having two prosecutors.
The problem is that judges can be just as guilty of bias as the prosecution or the defence. Many form their opinion of the guilt or innocence of the person early on, and it can show. In my opinion, it is the testing of the evidence by a lawyer coming from a contrary position that provides the best way of determining the truth of the what the witness is saying.
But, and this is a big but, even truthful witnesses can be wrong. The stats on eye witness evidence shows that something like 85% or so of eye witness descriptions (in tests) are incorrect. Indeed, in the US the Innocence Project has shown that a large majority of the exonerations that it has gained have been where DNA has proven eye witness identification to be wrong. In those cases, the truth was not what the witness honestly believed it to be.
The adversarial process is designed to produce conflict exactly because that is felt to be the best way of getting to the truth. Indeed, many inquisitorial systems still have the adversarial trial as their ultimate arbiter of guilt, with the inquisitorial part being found in the investigation, not the trial.
I actually forget where I was going with this, because I was interrupted in the middle of typing it. But I shall submit the comment anyway, in case someone gets something out of it!
Vote:September 13th, 2011 at 11:50 am
In the UK they have that caution at arrest time along the lines of “You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court”.
I like this concept. How does it fit with this new legislation?
Vote:September 13th, 2011 at 11:51 am
E Smith
Your pint are great.
Criminal trials in common law systems are supposed to be adversarial. This follows from a jurisprudential position, reached over centuries of experience, that the prosecution should bear the burden of proving an allegation of crime, that nobody should be forced to condemn himself out of his own mouth, and that the best way to test the truth of a proposition is by exposing it to an adversarial process in which the evidence to support it is subjected to cross-examination. Whilst some would take issue with Wigmore‟s claim that cross-examination is “beyond doubt the greatest legal engine ever invented for the discovery of the truth”, there is no doubting the power of cross examination to discover and reveal untruth. The role of the judge in an adversarial system is to facilitate this process and to ensure that it is conducted fairly and in accordance with the substantive legal rules, the rules of evidence and the procedural rules. As to the latter, the sole and proper purpose of rules of criminal procedure is to provide a framework for a fair means of delivering a verdict in relation to an
Vote:allegation of criminality. They are “the door, and the only door, to make real what is laid down by substantive law.” It is imperative, therefore, that procedural decisions are made on their own merits and without taking a preliminary view as to the truth of the allegation, which would be to put the cart before the horse.
September 13th, 2011 at 11:55 am
points sorry
Vote:September 13th, 2011 at 11:56 am
To perhaps bring this back to the bill in question, it appears that the right to silence is still seen by most politicians as sufficiently fundamental for it to be removed from the proposed legislation. I’m not sure removing the issue to a panel of the judiciary is a good idea. If the proposal had merit, Parliament is the instiution best placed to act on it.
Vote:I can’t see how the retention of a right to silence in its present form could be a bad thing. Changing that fundamental seems unnecessary.
September 13th, 2011 at 12:10 pm
Chris,
it doesn’t. The real issue is the defence having to disclose their defence at an early stage of the case. That means that the prosecution is notified of the holes in its case and can then work to fill the gaps.
That is a UK thing as well.
With regards the quote you give, that is correct. I don’t like it. It allows the Government to say that it has retained the right to silence while actually doing its utmost to do away with it. It basically pressures the defendant to make a statement, otherwise the judge, bench of justices or jury at trial will be entitled to draw an adverse inference against the defendant. This is the case whether or not they give evidence. Indeed, the refusal to give evidence can itself be used to draw an adverse inference against the defendant.
That is wrong. The prosecution brings the case and makes the allegations. The silence of the defendant in the face of the accusations should not be allowed to be taken as evidence tending to support their guilt.
The proposed legislation does not do this, although it must surely only be a matter of time before it comes in. The proposed legislation, as I note above, is about disclosure of the defence during the trial process. If there is non-compliance, then sanctions are available to the judge to impose on (from memory) the defence lawyer, as well as against the defendant. But I need to check that last bit.
Vote:September 13th, 2011 at 12:17 pm
F E Smith – “The trial is about evidence”
I agree that the trial is about evidence regardless of how that evidence is examined. Whilst an adversarial system may be effective in establishing the relevance and validity of submitted evidence, if the system is set up to try to undermine or discredit one’s adversary’s evidence by countering it with alternative interpretation of evidence, then the uncertainty will inevitably work in the defendant’s favour, as doubt will have been raised, rather than allayed.
If the process of examining evidence is aimed at establishing its validity by impartially analyzing its intrinsic veracity through extensive legal and scientific procedural testing, the I’d assume that this approach would lead to greater clarity.
I agree that the competency of the Judge could be a flaw in an inquisitorial system, just as receiving poor advocacy in the current system can be, but if Judges are trained correctly, then there is less room for human error or bias to corrupt the truth. For instance, you mentioned the unreliability of eyewitness testimony. A judge is more likely to be able to take this into account than would a jury, who would be more likely to react emotionally rather than rationally, and this would inevitably be used by either the prosecution, or defense, to try to sway their judgement.
With regard to process, I’d like to see the Jury system discontinued, but of course, lawyer advocacy would be retained to ensure the correct process is followed and the rights of the defendant respected. In what shape or format, I have no idea, but I imagine the whole system would have to be redesigned.
Vote:September 13th, 2011 at 12:22 pm
Nick K…
Herewith:
Gary Gotlieb: Knee-jerk laws undermine justice
Vote:I have been a criminal barrister for over 40 years. In that time, the population has more than doubled.
This has resulted in an increase in cases coming before the courts. Criminal offending has not in my observation got any worse.
It is just reported more often in a sensational way [KH comment - "If it bleeds, it leads…"] that makes the public and politicians demand a change in the law. The catch cry regularly reported is that as a society we need to “lock them up” or “we are good and they are bad”.
Law changes come at a disturbing rate. Revoking the defence of provocation was a knee-jerk reaction to an aberrant case. The defence of provocation was rarely successful in practice but it was there for exceptional circumstances.
I note that it has not been replaced with a defence of diminished responsibility, unlike in England, which saw the need for the law to still recognise such situations.
I was brought up to believe that less privileged people deserved to be treated fairly and with compassion. Some accused people have difficulty reading or writing, have low IQs, suffer from head injuries or have behavioural issues sometimes due to other circumstances, some of which they bear little or no responsibility for.
Once prisons used to have full-time teaching staff to help these people and tradespeople to teach them skills. Over time, our society has become less caring on the whole.
An exception to this was the Herald’s 2010 person of the year, Emma Woods, who showed understanding, compassion and forgiveness to the young man who killed her child while driving. Let us hope the politicians take note.
A first attempt at changing a tried and tested system of depositions (a pre-trial hearing to determine the sufficiency of the Crown’s evidence) was started by the Labour Government and completed by the National Party in 2009 for the purpose of “streamlining criminal procedure” by speeding up the process of getting people to trial.
The Government was warned by both the Law Society and a group of QCs who met the minister that such change was ill-conceived.
At depositions, cases were often resolved. The Crown had a complete file, and the case was tested, often resulting in a guilty plea or a lesser charge which saved the need for a trial.
Under the new system, the Crown will have an incomplete file as will the defence. The new committal process puts unfair time constraints on police and an accused person is now committed for trial by court registrars.
Last year I vigorously resisted a charge of murder being committed to trial as it seemed clear to me that there was no evidence that the victim, a baby, was alive at the time of the alleged offending. Luckily a senior experienced prosecutor accepted, after discussing the facts with the pathologist, that this was the case and the charge of murder was withdrawn.
My client pleaded guilty to a lesser charge. It saved the state the cost of a trial and the parties the trauma of going through such an experience. Under the old system of depositions, I would not have had to go through such a process and the same result would have occurred.
It is not working and the queue is simply getting longer. Manual District Court had a backlog of 150 trials. Under the new system, that backlog has increased to 300.
We have now had thrust on us a new criminal procedure reform proposal. A 562-page Criminal Procedure Bill was presented to Parliament on November 21 and submissions are due to be filed by February 18.
This bill has been in the process of development for a number of years but it is disturbing that the window for submissions is so short, especially given that a portion of that time is over the Christmas holiday break.
I do accept that the court process can be improved and accept some of the proposals but a number of significant changes are being snuck in.
The right to elect trial by jury has been restricted to people who are charged with offences where the maximum penalty is more than three years’ jail. A number of important types of offences will no longer be able to be tried by a jury including, for example, assault with intent to injure, assault on a child, male assaults female and possession of offensive weapons.
In addition, the proposals will remove the prohibition on allowing adverse inferences to be drawn from the failure of a defendant to answer a question. The right of an accused to remain silent has been enshrined in our law by the Bill of Rights Act and the Evidence Act.
Many people, when spoken to by the police, are in shock or have limited abilities. The Chief Justice in 2007 issued a practice note on police questioning which is designed to protect the rights of individuals when being questioned. Many miscarriages of justice have occurred at this stage and to remove this protection from the law shocks me.
A further extension of this is that if an accused person fails to set out in advance his or her defence then an adverse comment can be made against them. This is almost a reversal of the onus of proof which now exists.
Currently the law requires the prosecution to prove guilt. A defence lawyer’s role is to fearlessly protect the client from being convicted and to put any proper defence. The Bill of Rights enshrines the right to a fair trial but the proposals completely undermine established law.
The proposed changes display an attempt by the state to bolster its powers when it already has significant resources at its disposal. These changes should concern all citizens.
A significant review of potential miscarriages of justice was conducted by Sir Thomas Thorp (a retired High Court judge) in 2005. He researched 53 applications and found that at least 20 of those applicants might have been wrongfully imprisoned.
He concluded that there were significant shortcomings in our review systems and that the incidence of miscarriages had been underestimated and recommended the setting up of a specialist tribunal to review the convictions.
To date, no action has been taken to implement his recommendations.
This article does not allow a detailed examination of all the proposed changes but of significant concern is the change in emphasis from an adversarial process which has been developed over centuries to a more inquisitorial process which can compromise the current necessity of properly testing the evidence.
* Gary Gotlieb is a former president of the Criminal Bar Association, associate president of the Auckland District Law Society and vice-president of the Law Society.
By Gary Gotlieb
September 13th, 2011 at 12:23 pm
mikenmild – “To perhaps bring this back to the bill in question”
What FE Smith was explaining is a fundamental part the issues pertaining to this bill, if you’d care to actually read it.
Vote:September 13th, 2011 at 12:35 pm
The right to silence, whether at interview or trial, is fundamental. It is, in part, supposed to prevent misuse of the powers that the Police have at their disposal in interviewing a suspect.
While many don’t believe that there is such a thing as Police abuse of power, that is more because it is not widely reported in NZ, not because it doesn’t happen.
The UK has seen the media in recent years far more willing to report such instances. Like this (more here)and, under the Portugeuese inquisitorial system, this.
An interesting point is made here
The idea of the right to silence is also supposed to guard against events like this happening.
EDIT: Cheers, Scott. The thing is that it is all linked. The right to silence is under threat, and the requirement to disclose the issues pre-trial is a part of the move to do away with the right to silence. Effectively it says ‘tell us your case or else we can presume bad things about you’. That is why we characterise it as an attack on the right to silence.
Vote:September 13th, 2011 at 12:45 pm
FE Smith – “Contrary to popular opinion, most suspects do not exercise their right to silence. Most give a statement. Sadly, many shouldn’t give a statement. I have seen cases where the only evidence produced against the defendant was the defendant’s own statement. Is that how you want to conduct the criminal justice system? Where the defendant is the main prosecution witness?”
Ah yes I’m sure the police just have a habit of arbitarily detaining random people on a street, accusing them of a crime they didn’t commit and then having them sponatenously and freely admit to that crime on video, yeah right….
The above attitude of lawyers in always telling ‘client’s to clam up and not to say a word, while entirely within their brief and indeed they would be remiss not to, is one of the reasons why the court system is as overburdened and overworked as it is.
In the current system you would be mad to make a statement to police when you can simply wait a couple of months, recieve all the police evidence and manufacture a defence around that. Any lawyer who encourages their client to make a statement would simply not be acting in their best interests.
I think encouraging defendants to make free and open statements at the time of arrest (in the presence of counsel if required) coupled with free and frank disclosure between prosecution and defence throughout proceedings, would significantly cut down on needless defended hearings, cases being dragged to death and result in a far fairer and healthier system.
Vote:September 13th, 2011 at 12:46 pm
F E Smith – I will just respond to your query about ‘incompetent lawyers’. Quite often the basis for an appeal are things a defence lawyer should or should not have done. This generally gets very short shift from the judges who generally express support for the way the impunged lawyer handled matters. I was using this as an example of means an accused will use to try and get a retrial to try on a Plan B defence. Of course a Plan B defence is too risky to use the first time round but then anything is worth a try after initial conviction. Other pretexts for trying to get a retrial are the lawyer wrongly advised the accused not to take the stand, a crook summing up, improper evidence, media reports that could influence jurors, etc. With regard to the latter, anyone would think that jurors were a pack of dummies.
Vote:September 13th, 2011 at 12:48 pm
What a powerful piece by Gary Gottlieb.
Interesting to note his point about the removal of depositions increasing the trial backlog significantly. That is very true, with the new process speeding up the time for committal, but as a result leading to a huge number of trials outstanding, some of which would have previously been resolved at the depositions hearing.
It really was a retrograde step, but it interesting that the result has been a worsening of the delays to trial and a real increase in the workload of the firms holding a Crown Solicitors warrant.
But make no mistake about it, while these changes are dressed up as being in the interests of efficiency, they are fundamentally tilting the balance even further in favour of the prosecution than it already is.
Vote:September 13th, 2011 at 12:53 pm
Peterwn,
Actually, that is incorrect. If you used the word ‘sometimes’ instead of ‘quite often’, then I would accept what you say. But appeals based on lawyer incompetence are really difficult to win, and they are a pain in the neck to undertake. You have to get a waiver of privilege from the appellant, and then an affidavit from the original lawyer. Sometimes you have to have one from the original prosecutor as well. For the success rate, they really aren’t worth it. Even more importantly, many lawyers just won’t take that sort of an appeal, end of issue. You really have to have a good case before a lawyer will be a party to that sort of an appeal, as making that type of a allegation against a fellow lawyer is taken very seriously by the Courts, and if you make it without justification you can get in real trouble.
That idea of a ‘plan b’ defence being advanced at a re-trial is interesting. I haven’t heard of it before. When has it happened in NZ?
EDIT: I have just re-read your comment- are you sure that you are not thinking about appeals over what judges or the prosecution should or should not have done? Those do happen all the time.
Vote:September 13th, 2011 at 1:02 pm
Actually, Dexter, most suspects don’t consult lawyers before they are interviewed. I wish they would, it would make our jobs a lot easier. And, from my experience, they actually do often confess.
Absolutely right, but don’t make the assumption (often made by the police) that the lawyers are assisting the defendant in ‘manufacturing’ a defence. The defence is either present or it is not. Whether it is present is usually very obvious as soon as you get the disclosure, or, sometimes, once you have talked to the client.
But the defence lawyer will not ‘manufacture’ a defence. That would be highly unethical.
Ha! If you think defence lawyers are secretive, try dealing with the police. You will never get full and frank discussion from the police unless they think it will assist them. And speeding up the trial process doesn’t assist them, unless they can’t be bothered with the case, in which case you get a phone call asking what it would take for your client to plead guilty. That happens a bit when your client has indicated they would plead to a lesser charge but maintain they are not guilty of a more serious one.
Vote:September 13th, 2011 at 1:17 pm
“Actually, Dexter, most suspects don’t consult lawyers before they are interviewed. I wish they would, it would make our jobs a lot easier. And, from my experience, they actually do often confess. ”
Which is part of the problem, a lawyer will always tell their client not to make a statement as there is absolutely no benefit in doing so, unless they are indeed innocent and have an alibi.
It seems ridiculous that a defendant has up to a year to manufacture a defence during which time they receive in full the police evidence while disclosing none of their own. It would be akin to the police turning up on the day and ambushing the defence with 8 eye witnesses, forensic evidence and an admission from the defendant, none of which was disclosed previously and all of which would have resulted in the charge being negotiated or a guilty plea entered prior to the hearing.
I’m sure it would be quite easy to safeguard the system from prosecutorial abuse if it was suspected that they were abusing the defendants dislosure rather than using it to avoid unnecessary hearings.
Vote:September 13th, 2011 at 1:56 pm
@ flipper – thank you.
Vote:September 13th, 2011 at 2:04 pm
The proposal to send the issue of removal of right to silence to the Rules Committee is completely stupid, if I can be so frank.
The Rules Committee is established under the Judicature Act to make or amend rules for the Courts, to enable their proper function. It is not there to decide on State powers – essentially powers of the Executive.
It is completely bizarre that the Rules Committee of the High Court should even consider this fundamental change to Executive powers. The Judiciary and Executive branches of government must remain completely separate. If not, we may as well just let the police decide whether we are guilty or not, and stuff the courts.
I know where this is coming from. There is pressure from certain lobbyists to de-power “weak” judges. They see a way of doing this is by removing their functions, if they can. The move towards mandatory sentences is another example, which, again, must be resisted.
My view is that the PM should intervene and remove this Bill from the Order Paper. Changes of this nature need more than just a clause in a Bill, or a resolution from a Rules Committee.
I see Jim Evans agrees with me: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10751448
Vote:September 13th, 2011 at 2:44 pm
Dexter,
Such cynicism! If I may make a couple of points re your 1.17pm comments:
I tell all my clients not to make a statment, even if they tell me they are innocent. The exception to that is clients who are suspected of sexual offences. In that case I tell them to get in with the statement really quickly. Always better to try to head sex charges off at the pass than deal with them at trial. Of course, if the issue is consent then it is pretty much guaranteed to go to trial.
Two points there, last one first: why should the defendant have to disclose anything? This is not a civil case, they are being charged with a crime that might see them go to prison. Why should the defendant have to do anything to assist the prosecution?
Secondly, you still seem to think that defendants ‘manufacture’ their defence. While I am sure some do, this doesn’t generally happen if there is a defence lawyer involved. That is because the defence lawyer will generally interview the defendant very early on and have taken a statement from them. This statement will assist the lawyer in determining whether there is a defence, as well as forming a basis for a brief of evidence if the defendant does actually decide to give evidence. Of course, if the person is defending themselves, which is going to occur more often with the further legal aid reforms that are gong through Parliament, then you may have a point.
That said, there have been times when I have spontaneously called my client to give evidence without having a brief of evidence, but very rarely and only when I am convinced of their innocence.
Also, most summary cases, which make up about 90% of all trials, are dealt with inside 9 months, and often within 6 or 7 months. Cases taking over a year are generally jury trials.
Which is what they used to do until the mid 1980s, and which backster is on record above advocating that they go back to doing.
Really? How? How would you know they were abusing the regime?
Sarah, sorry, didn’t see your post until just now. Don’t know why, it didn’t seem to display in this thread. Anyway, just want to say a very good comment on your part.
Vote:September 13th, 2011 at 2:55 pm
“Really? How? How would you know they were abusing the regime?”
It would be patently obvious if a brief was changed, extra witness called or additional evidence gathered directly as a result of the defendants disclosure, as of course the former would then have to be counter disclosed. And certainly a Judge given their background would be more than aware of tricks either side might seek to employ.
Vote:September 13th, 2011 at 3:01 pm
But, Dexter, the purpose of the defendant disclosing evidence is exactly to allow the prosecution to change a brief, call an extra witness or gather additional evidence. That is precisely why the Government wants to have it.
So that cannot be an abuse of the process.
And don’t count on the judge being aware of the tricks, a lot of them have civil or family backgrounds and only started having regular contact with the criminal courts once they became judges.
EDIT: Sorry, not defence disclosing evidence but defence disclosing defences and issues.
Vote:September 13th, 2011 at 3:28 pm
“the purpose of the defendant disclosing evidence is exactly to allow the prosecution to change a brief, call an extra witness or gather additional evidence. ”
My understanding was that it was to encourage ‘issues’ to be sorted out pre hearing, ie the prosecution can see the defence evidence and negotiate or drop the charges all together if appropriate. And that if the prosecution still insisted in going to trial despite knowing the frailties in their case that this would incur judicial criticism and censure.
Although I can certainly see your concerns re state vs individual power imbalance etc, if it translates as you suggest.
Vote:September 13th, 2011 at 3:32 pm
In R. v. Clarke and McDaid42 the House of Lords quashed the convictions of the appellants because, it was held, the failure of the appropriate court officer to sign the indictment as required by statute meant that there was no indictment at all. This was widely perceived to be the quashing of convictions of serious criminals on account of a mere technicality,43 although as Lord Bingham said, “it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place”.44 The reaction of government, predictably, was not to inquire into why there had been such a failure and to take steps to ensure that it was not repeated, but to abolish a rule that had existed for good reason for many years.45 The judgment of Sully J. in the New South Wales case of R. v. Swansson; R. v. Henry46 exposes the dangers of such knee-jerk legislation. He held that a failure to observe the long established rule of the common law that there can be only one indictment in any one criminal proceeding47 rendered the proceedings a nullity.
Attaching value to procedure is to promote excellence in practice. Llewellyn was uncompromising in his view that procedural
Vote:regulations should be marked off for the “most intensive” separate study “because they are of such transcendent importance as to need special emphasis. … For what substantive law says should be means nothing except in terms of what procedure says that you can make real.” The New Zealand legislature must now decide whether it wishes to pursue this legislation in the face of widespread concern. It must also decide whether the English and Welsh precedent is really the one
that they wish to follow, given that the English criminal procedure reforms had their roots in civil reforms that many perceive to have failed in their attempt to address excessive cost, delay and complexity. Bearing in mind that these were the exact complaints listed by Simon Power about criminal procedure in New Zealand when he introduced the bill, should not the experience in England and Wales give the New Zealand Parliament pause for thought? Rather than heed the
enthusiastic endorsement of the case management culture by the senior English judiciary, it is suggested that the New Zealand legislators should heed the concerns of their own most senior judiciary, and consider ploughing their own furrow in recognition of the dictum of the distinguished American jurist, Frankfurter J., when he said that “the history of American freedom is in no small measure, the history of procedure.
September 13th, 2011 at 3:56 pm
Dexter, the answer is that both your understanding and my point are both correct.
The stated intention is that there should be notification by the defence of both defences and issues so that the prosecution can examine them and consider their position. However, there is nothing in the law that says that is the only purpose for which it is to be used.
It is inherent in the legislation that the police will make use of the disclosed defences and issues to bolster their case in any way they can. How can I say this? Two reasons. Firstly, this legislation mirrors that of the UK criminal process, and the prosecution there use it as a basis for further investigation in order to strengthen their case. They would be considered remiss if they did not do so.
Secondly, when status hearings were introduced in NZ a few years ago now, the criminal bar were told that disclosures made in those hearings would be only used for the purposes of those hearings. In some places the police ignored this and when their further evidence gathering was challenged the Courts ruled that using the information disclosed during a status hearing to bolster the police case was absolutely fine. Hence, you will get exactly the same situation with this current bit of proposed legislation.
Everybody involved in the business knows this and nobody is trying to hide it. These disclosures will be of huge benefit to the prosecution in shoring up what may have been a weak case, or even closing a hole you did not know existed.
Sara, those are some wonderful quotes you are pulling up. How about emailing them to Simon Power?
Vote:September 13th, 2011 at 4:11 pm
F F Smith
Thanks, Simon Power has already got them and more than that. James Richardson QC is going to write a critique in regard to the new proposed reform since he is absolutely stunned with the way Simon Power is fooling around with our fundmental rights and freedom.
Vote:September 13th, 2011 at 4:13 pm
James Richardson QC from England who made submission to the select committee and warned the government about the detrimental ramifications of this bill.
Vote:September 13th, 2011 at 4:17 pm
A slight digression,but legal related nonetheless.
APNZ reports on the Urewera case at the High Court …..
“The hearing in the High Court at Auckland yesterday,began with a karakia and waiata.”
Did I miss something about criminal procedures? Seriously.
Vote: