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May 2, 2011 | by  | in Opinion |
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Laying Down the Law – The Justice System Gets A Makeover

In November last year, Simon Power introduced to Parliament the shiny new Criminal Procedure (Reform and Modernisation) Bill, touting it as the “biggest change to the criminal justice system in 50 years.”

According to the Government, the law reform the bill proposes will result in 43,000 fewer court events annually, fewer cases going to trial and more flexibility with juries.

Initial response to the Bill was lazily positive—possibly because it’s over 500 pages long, and it was less time consuming/painful to just repeat points from the press release than to actually read the entire thing. The majority of the Bill is sensible and will undoubtedly improve the efficiency of our courts. However, certain provisions are warily regarded by litigators, commentators and the judiciary as an attempt to undermine human rights and attack the foundations on which the criminal justice system has been built.

Presently (as stated in the New Zealand Bill of Rights Act 1990), anyone charged with an offence for which the maximum penalty is over three months can request a jury trial. The Bill aims to extend this tariff to three years. It seems illogical that a right declared as fundamental only 20 years ago could be abolished with such ease and that the important societal function a jury serves might be disregarded. Juries encourage civic participation, serve as a check on an over-zealous prosecution, and provide viewpoints and life experiences that a judge alone may lack.

There are some crimes with a maximum penalty currently under three years that will clearly still need to be heard by a jury, regardless of any law passed: these include infanticide, bigamy, indecency with an animal and assault with intent. Similarly, there are electoral offences that Parliament has affirmed must always have a jury trial. These considerations appear to have been disregarded in favour of one-size-fits-all legislation that might not even do what it claims to.

The Bill requires that defendants, prior to trial, inform the court and the prosecution which elements of the offence they accept, which elements they deny and any defences they intend to argue. Silence on the defendant’s part can be used to infer evidence of guilt, although this can’t be the sole basis for conviction. This provision could drastically impinge upon two fundamental rights. First, it is a foundation of our criminal law that a defendant is presumed innocent until guilt is proven beyond reasonable doubt by the prosecution—the intended changes will shift this onus of proof onto the defendant, who lacks the state’s power and resources. Second, the defendant’s right to remain silent is also set out in the Evidence Act 2006. There is no way that silence can reasonably infer guilt—the only thing one could reasonably conclude from a defendant not talking is that the defendant doesn’t want to talk! (Which could be for a multitude of reasons other than guilt.)

Notable Select Committee submissions opposing the bill come from Supreme Court Chief Justice Dame Sian Elias, prominent barrister Judith Ablett-Kerr QC and the Human Rights Commission. Perhaps the most interesting is that of the District Court Judges, which seems to suggest that if the Bill is passed, they will ignore it. Any good law student will know that if the judiciary refuses to apply law Parliament creates, a ‘Constitutional Crisis’ (!) could occur, which has never happened in New Zealand before. While it would be cool to see what a ‘Constitutional Crisis’ actually entails in this day and age, it’s probably not in the best interests of a sound and secure legal system. Lame.

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