Criminal Procedure Bill Government Bill As reported from the Law and Order Committee Commentary Recommendation The Law and Order Committee has examined the Criminal Procedure Bill and recommends that it be passed with the amendments shown. Introduction This commentary focuses on the key areas of criminal procedure that the bill proposes to significantly reform to provide for • trial by Judge alone in exceptional circumstances • two exceptions to the rule against double jeopardy • majority verdicts • the codification of criminal disclosure • the partial abolition of preliminary hearings. We discuss the key issues arising in our examination, majority rec­ ommendations, and dissenting views. Our commentary is organised according to the four principal pieces of legislation that are being amended, and the new Act proposed under the bill. 158—2 2 Criminal Procedure Bill Commentary The bill will amend the Crimes Act 1961, Summary Proceedings Act 1957, District Courts Act 1947, Juries Act 1981, and Victims’ Rights Act 2002, and enact a new Criminal Disclosure Act. The proposed reforms aim to give effect to the Government’s pol­ icy goal of maximising efficiency and fairness in the criminal justice system. It reflects similar measures in some overseas jurisdictions which altered certain longstanding principles of criminal law to en­ hance public confidence in the criminal justice system. Committee approach The changes proposed in the bill represent significant departures from certain basic principles of criminal law. We were cognisant of concerns that these rules should not be overridden merely in the interest of convenience and expediency. We had regard to the submissions received on the bill, most of which supported the policy objective of the bill, but objected to many of the key proposals. In this commentary most of us refers to Labour and United Future members. Some of us refers to National and New Zealand First mem­ bers. After much thought most of us consider that the bill makes many timely and necessary changes to the law. Most of the recommended amendments are intended to ensure that adequate checks and bal­ ances are provided, and that the legislation is workable. Amendments of a technical and consequential nature are not discussed. National and New Zealand First do not support some of the provi­ sions of this bill. Part 1 – Crimes Act 1961 This part of the commentary mainly focuses on our consideration of the major changes proposed to the Crimes Act 1961, providing for trial by Judge alone in exceptional circumstances, and for two exceptions to the rule against double jeopardy. Commentary Criminal Procedure Bill 3 Trial by Judge alone Clause 5 inserts new provisions into the principal Act to empower Judges to order a trial without a jury in certain cases: • where the case is likely to be long and complex (new section 361D) • when there is evidence of intimidation of jurors (new section 361E). We acknowledge that the fundamental right to a trial by jury should be preserved, and note that the bill does limit this right in some circumstances. The right to a jury trial has its foundation in the Magna Carta and is codified in section 66 of the Summary Proceed­ ings Act 1957 and section 24(e) of the New Zealand Bill of Rights Act 1990,1 but is subject to section 5 of that Act. Section 5 allows justified limits to be placed on the rights and freedoms contained in that Act. The Attorney­General considers that the limits proposed on jury trials do not breach the Bill of Rights. We note that the majority of criminal trials are summary trials, which are Judge­alone trials.2 There is no evidence that a Judge sitting alone is incapable of preventing prosecutorial abuses which would be mat­ ters for a Judge to deal with even in jury trials, by excluding evidence, staying proceedings or other judicial mechanisms. Long and complex trials The right to trial by jury is not absolute. It must be balanced against the right of the 12 jurors not to be diverted from the normal pursuit of their lives for an unreasonably long period.3 New section 361D allows for Judge­alone trials in cases likely to be long and complex. For this to apply the penalty faced by an accused must be less than 14 years’ imprisonment, and the trial must be likely to last longer than 20 days. 1 A trial by jury is guaranteed for a person charged with an offence with a maximum penalty of more than 3 months’ imprisonment. 2 Sections 361B and 361C of the Crimes Act permits an accused to apply for a trial by Judge alone; and in the summary jurisdiction all trials are by Judge alone. 3 This issue was discussed comprehensively in the New Zealand Law Com­ mission report Juries in Criminal Trials, No 69, 2001, p. 2. 4 Criminal Procedure Bill Commentary We note that the provision for trial by Judge alone responds to a New Zealand Law Commission report on juries, which stated, among other things, that jurors had considerable difficulty assimilating large amounts of complex evidence. Moreover, long trials were found to put pressure on jurors’ personal lives. Jurors’ understanding of complex legal issues We recommend amending new section 361D to clarify that potential jurors’ ability to understand complex legal issues should not be the determining factor in a Judge’s exercise of the discretion to hold a Judge­alone trial. Rather, the nature of the particular issues of the cases should be considered. Right of accused to notice and reply We recommend amending new section 361D(2) to clarify the onus on the prosecution to notify the defendant when lodging an application for Judge­alone trial. We also recommend new section 361D(3) be amended to specify that the prosecution and the accused must both be given an opportunity to be heard in relation to such an application before an order is made. 14­year threshold Submitters argued that the provision for Judge­alone trials will re­ move an incentive for the prosecution to present cases simply. New section 361D will apply only to persons charged with offences pun­ ishable by less than 14 years’ imprisonment. This is an appropriate threshold because persons liable for the severest of penalties are en­ titled to be tried by a jury, with the one exception of juror intimi­ dation. We expect a limited number of Judge­alone trials under the provision, given that there have been only 11 jury trials in the last 5 years that would qualify. United Future addresses this issue in their minority view at the end of this commentary. Juror intimidation New section 361E provides that if there is evidence of the intimi­ dation of jurors and its effect can be avoided only by a Judge­alone Commentary Criminal Procedure Bill 5 trial the prosecution may apply for one. The provision is intended to protect the integrity of the trial process. The rule does not have the 14­year penalty threshold that applies to long and complex trials. It would be anomalous if intimidation in more serious cases did not qualify for trial by Judge alone. The intimidation of jurors is, we acknowledge, difficult to measure. Anecdotal evidence suggests it may be common in gang­related pros­ ecutions, and the presence of mobile telephones with cameras in court rooms has heightened concerns. We would expect this provision to be seldom used if juror intimidation is indeed rare in New Zealand, and consequently its impact to be minimal. We note the bill will amend the Juries Act 1981 to further protect the confidentiality of jurors’ identities. Jury panels We recommend amending new section 361E(2)(a) to clarify that the mischief targeted is people being intimidated prior to selection as jurors, for example by threats to potential jurors. Right to apply for Judge­alone trial It was submitted that new section 361E should be widened to give the accused the right to apply for a Judge­alone trial. We note the provision specifies that the Judge must have reasonable grounds to believe intimidation is occurring, has occurred or may occur. We consider this requirement is appropriate to deal with situations where intimidation is either for the purpose of convicting or acquitting an accused. Cross­examination of expert witnesses We recommend amending clause 6, new section 367(1C) to provide that the accused by leave of the Court may call an expert witness immediately after prosecution expert witnesses. The bill currently provides for this in jury trials only. Our amendment recognises that there may be days or weeks between the testimonies of Crown and defence expert witnesses. It is intended to allow the defence to call expert rebuttal evidence immediately after prosecution experts have been heard to allow the jury or Judge to better follow the differences in their evidence. 6 Criminal Procedure Bill Commentary Exceptions to double jeopardy rule Clause 7 provides for two exceptions to the rule against double jeop­ ardy by allowing re­trial after acquittal in two exceptional circum­ stances: • where the accused has committed an administration of justice offence resulting in a “tainted acquittal” (new section 378A) • where there is “new and compelling evidence” not available at the time of the first trial, which indicates with a high degree of probability that the accused is guilty of the offence acquitted (new section 378D). The rule against double jeopardy is a fundamental principle of law, which declares that a person should not be tried for the same crime more than once. The basic premise is that the State, with all its re­ sources and powers, should not be allowed to make repeated attempts to convict a person for an alleged offence.