Digest No. 1819 Criminal Procedure (Reform and Modernisation) Bill 2010 Date of Introduction: 15 November 2010 Portfolio: Select Committee: Published: 18 November 2010 by John McSoriley BA LL.B, Barrister, Legislative Analyst P: (04) 817-9626 (Ext. 9626) F: (04) 817-1250 Justice As at 18 November, 1st Reading not held. Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status. Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill. Public enquiries: Parliamentary Information Service: (04 817-9647) Purpose The purpose of this Bill is to simplify criminal procedure and provide an enduring legislative framework that: ensures the fair conduct of criminal prosecutions in the New Zealand courts (as reflected in section 25 of the New Zealand Bill of Rights Act 1990); and reduces unnecessary delay and inefficiency of court processes; and 1
avoids unnecessary stress to victims, witnesses, jurors, and others involved in criminal processes; and eliminates unnecessary complexity in the legislation governing criminal procedure; and addresses shortcomings in the legislative framework arising from piecemeal amendments over many years; and enables the courts to adopt new (and current) information technologies, as appropriate 1. Background Drafting approach generally Many provisions in the Bill simply reflect existing provisions in the Summary Proceedings Act 1957 or Crimes Act 1961. The drafting approach taken is generally to consolidate provisions, simplify and modernise language, and ensure that court processes can take advantage of developing information technologies. Only high level procedural requirements are included in the Bill. Matters of detailed procedure will be provided in court rules. This approach preserves minimum standards for the conduct of criminal procedure while ensuring that the legislation is sufficiently flexible to take account of particular circumstances, future technology changes, and other developments. The scope of reform provided in the Bill has required amendment to a number of other enactments to ensure that they appropriately reflect the new approach to offence categorisation and procedure in the District and High Courts. In addition, the Bill almost entirely repeals Part 12, and repeals Part 13, of the Crimes Act 1961, and repeals most of the Summary Proceedings Act 1957. The Bill amends the Title of the latter Act to the Enforcement of Infringement Offences and Fines Act 1957 to reflect its revised scope 2. New Zealand Bill of Rights Act 1990 (Bill of Rights Act) Section 24 of the Bill of Rights Act sets out the rights of a person charged. Everyone who is charged with an offence: 1 Criminal Procedure (Reform and Modernisation) Bill, 2010 No 243-1, Explanatory note, General policy statement, p. 1. 2 Ibid., pp. 14 and 15. 2
(a) Shall be informed promptly and in detail of the nature and cause of the charge; and (b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and (c) Shall have the right to consult and instruct a lawyer; and (d) Shall have the right to adequate time and facilities to prepare a defence; and (e) Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months; and (f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and (g) Shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court. Section 25 of the Bill of Rights Act sets out the minimum standards of criminal procedure as follows: Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: (a) The right to a fair and public hearing by an independent and impartial court: (b) The right to be tried without undue delay: (c) The right to be presumed innocent until proved guilty according to law: (d) The right not to be compelled to be a witness or to confess guilt: (e) The right to be present at the trial and to present a defence: (f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution: (g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty: (h) The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both: (i) The right, in the case of a child, to be dealt with in a manner that takes account of the child's age. Retroactive penalties and double jeopardy Section 26 of the Bills of Rights Act is a provision relating to retroactive penalties and double jeopardy and provides: (1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred. 3
(2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again. New Zealand Bill of Rights concerns The Attorney-General in a report on the Bill 3 has said The right of an accused person to minimum standards of criminal procedure is a fundamental human right recognised by article 14 of the International Covenant on Civil and Political Rights (ICCPR) and affirmed in [Section] 25 of the New Zealand Bill of Rights Act 1990. In three respects I have concluded that the Criminal Procedure (Reform and Modernisation) Bill is inconsistent with the rights guaranteed by s 25 of the Bill of Rights Act 1990. The provisions which the Attorney-General finds inconsistent with the New Zealand Bill of Rights Act 1990 are: trials in the absence of the defendant (guaranteed by Section 25(e) of the Bill of Rights Act) Clause 124(1) allows a defendant to be excluded from his or her trial where he or she interrupts the hearing to such an extent that it is impracticable to continue in the defendant s presence and Clause 128 provides that where a defendant who has pleaded not guilty to a category 2, 3 or 4 offence does not appear for trial but the prosecutor is ready to proceed, the Court may proceed if satisfied that the defendant has a reasonable excuse for not attending; but must proceed with the hearing if not satisfied that the defendant has a reasonable excuse for not attending; re-trial of acquitted defendants Section 26(2) of the Bill of Rights Act set out above is contravened by Clauses 151 and 154 which provide exceptions to the double jeopardy rule: First, if a person is acquitted of an offence punishable by imprisonment and is later convicted of an administration of justice offence that taints their acquittal, the High Court may order that person to be tried again The second exception applies only to offences for which the penalty is 14 years imprisonment or more. The Court of Appeal may, on the application of the Solicitor- General, order a re-trial of a person acquitted of such an offence, if there is new and compelling evidence of their guilt and where it would be in the interests of justice. The Attorney-General believes both these exceptions limit the right of persons acquitted not to be tried again for the same offence. Reverse onus of proof. Section 25(c) of the Bill of Rights Act guarantees the right to every person charged with an offence to be presumed innocent until proven guilty according to law. Such a reverse onus exists now under Section 67(8) of the Summary Proceedings Act in 3 Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal Procedure (Reform and Modernisation Bill, J4, (Hon Christopher Finlayson, Attorney-General, 15 November 2010. 4
respect of summary offences. The Bill repeals that provision in Schedule 5 of the Bill but places similar provisions offence provisions of in 12 statutes. The Attorney-General sets out aspects of the Bill which limit rights guaranteed by the Bill of Rights Act but which are demonstrably justified 4. These are: The Bill allowing for the clearing of the Court (Clause 201); Suppression Orders (Clauses 204-209); Trials of category 3 and 4 offences by Judges sitting alone (Clauses 102 and 103); and reverse onus provisions (see above); The Attorney-General sets out matters that he considered do not limit rights under the Bill of Rights Act: the defence obligation to identify issues in advance of hearing (see below); power to dismiss appeals for procedural non-compliance (Clause 338); amendments to the Sentencing Act 2002, procedural failure as an aggravating feature in sentencing (Clause 431). The Attorney-General has also issued another report 5 under the Bill of Rights Act in respect of the Bill in respect of this Bill. The Bill proposes to amend Section 24(e) of the Bill of Rights Act (which provides the right to a trial by jury to a person if the offence carries a penalty of more than 3 months imprisonment). The Attorney-General states that Clause 429 of the Bill (which replaces 3 months with 3 years ) is necessarily inconsistent with the section that it seeks to amend. However, he also states: The significance of that inconsistency is qualified, both because the jury trial right is not provided in international human rights law and because the proposed three year threshold remains consistent with broad practice in comparable jurisdictions. 4 Section 5 of the Bill of Rights Act provides the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can demonstrably justified in a free and democratic society. 5 Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the proposed amendment to s 24(e) of the New Zealand Bill of Rights Act 1990 in the Criminal Procedure (Reform and Modernisation) Bill, Hon Christopher Finlayson, Attorney-General, 15 November 2010. 5
A copy of the regulatory impact statement issued in respect of this Bill may be found at the following sites: http://www.justice.govt.nz/policy-and-consultation/regulatoryimpactstatements/criminalsimplification/simplification_ris ; or http://www.treasury.govt.nz/publications/informationreleases/ris. Main Provisions Only the most significant aspects of this Bill are discussed below Categories of offence Under this Bill, offences are no longer classed as summary or indictable, but are instead grouped into four categories as follows: Category 1 offences are offences that are not punishable by a term of imprisonment (including infringement offences in cases where proceedings are commenced by filing a charging document, rather than by issuing an infringement notice). These will always be tried by a District Court Judge, or one or more Community Magistrates or Justices of the Peace; Category 2 offences are offences that are punishable by a term of imprisonment that does not exceed three years. These will be tried by a District Court Judge; Category 3 offences are offences that are punishable by imprisonment for life, or for more than 3 years (other than the category 4 offences listed in Schedule 1). These will be tried by a Judge unless the defendant elects trial by jury and will be heard in the District Court unless the offence is transferred to the High Court; Category 4 offences, which must always be tried in the High Court by a jury, are listed in Schedule 1 (Part 1, Clauses 6 and 9). Jury trials The Bill makes significant changes to the procedure relating to jury trials including: a greater ability to make pre-trial applications in judge-alone trials (for example part 3, Clause 78); abolishing the step of committing a case for trial (i.e. deposition hearings to determine whether a prima face case exists) - however there is provison requiring the prosecution to file formal written statements and for committal to be then automatic unless the defence successfully applies for an oral evidence order within 14 days; 6
replacing the present requirement that oral evidence must always be heard in a courtroom before a Judge with provisions that oral evidence may be taken in a courtroom or elsewhere by a Judge, Community Magistrates, or Justices of the Peace, or by a Registrar.; replacing the requirement that all formal statements be in writing by enabling a statement to be recorded in any medium (Part 3, Subpart 7, Clause 82); enabling the courts to require all defendants to plead after they have had the opportunity to obtain legal advice and have received initial disclosure from the prosecution and where a defendant fails to enter a plea, a not guilty plea will be deemed to have been entered (at present it is possible for defendants to plead after committal) ; establishing a presumption that a category 3 offence is tried by a Judge sitting alone, unless the defendant elects trial by jury and the defendant is required to elect at the time a not guilty plea is entered. A late election or withdrawal of election is only possible with the leave of the court when specified circumstances exist (Part 3, Subparts 1 and 2, Clauses 33-51). Case management The Bill puts in place a case management system and in particular requires the defendant to formally identify the issues that are in dispute (that is, the nature of the defence to be run at trial) before the trial. The Bill also provides authority for the court to give an indication of the sentence a defendant is likely to receive if he or she pleads guilty at that time. The Bill also introduces incentives and sanctions to: allow the court or Registrar to impose bail conditions reasonably required to ensure that the defendant takes the necessary steps for the timely progress of his or her case (for example, attending an appointment with a probation officer for the purpose of preparing a pre-sentence report); allow the court to impose cost orders against a defendant, defence counsel, or the prosecution if satisfied that he or she failed without reasonable excuse to comply with a procedural requirement; require a sentencing Judge to take into account as aggravating or mitigating factors (to the extent applicable) the failure of the prosecution or the offender to comply with a procedural requirement or positive steps taken by the offender (over and above mere compliance) to expedite or reduce the cost of proceedings (Part 3, Subpart 3, Clauses 52-67). 7
Comment The Attorney-General s report discusses the implications of this new obligation in relation to the defendant s right to silence and the presumption of innocence 6. Proceeding in the absence of the defendant The Bill builds on the current statutory framework and case law to provide a statutory presumption that the court will commence or continue proceedings if the defendant is absent from court without a reasonable excuse. The Bill also enables the court to proceed without the defendant when he or she has a reasonable excuse. In both situations, the court must not proceed without the defendant if it is satisfied that doing so would be contrary to the interests of justice. For offences in categories 2, 3, and 4, the court may grant a retrial of a defendant who is found guilty in his or her absence if the court is satisfied that the defendant has a defence that would have had a reasonable prospect of success if he or she had attended the trial. In order for the retrial to be granted, the defendant will need to provide the court with an outline of the defence on which the defendant intends to rely if a retrial is granted and a formal statement from each witness who the defendant intends to call (Part 5, Subpart 1, Clauses 124-132). Name suppression The Bill deals comprehensively with the question of name suppression. The Bill provides that a court may make an order forbidding publication of the name and any other identifying information about a person who is charged with, or convicted or acquitted of, an offence, but a court may make such an order only if satisfied that publication would be likely to: cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or cast suspicion on another person that may cause undue hardship to that person; or cause undue hardship to any victim (as defined in section 4 of the Victims' Rights Act 2002) of the offence; or create a real risk of prejudice to a fair trial; or endanger the safety of any person; or lead to the identification of another person whose name is suppressed by order or by law; or 6 Report of the Attorney-General on the Bill, pp. 24-28. 8
prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or prejudice the security or defence of New Zealand. The Bill also provides that a court may make an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in any proceeding in respect of an offence (Part 5, Subpart 3, Clauses 204-209). Appeals may be dismissed for procedural non-compliance The Bill provides that an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal (Part 6, Subpart 11, Clause 338). Aggravating and mitigating factors in sentences The Bill introduces a new aggravating or mitigating factor in sentencing. This is any failure by the offender personally (or failure by the offender s lawyer arising out of the offender s instructions to, or failure or refusal to co-operate with, his or her lawyer) to comply with a requirement by this Bill or certain other legislation which has caused delay in the disposition of the proceedings has had an adverse effect on a victim or witness (Part 9, Clause 431, amending Section 9(1) of the Sentencing Act 2002). Copyright: NZ Parliamentary Library, 2010 Except for educational purposes permitted under the Copyright Act 1994, no part of this document may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, other than by Members of Parliament in the course of their official duties, without the consent of the Parliamentary Librarian, Parliament Buildings, Wellington, New Zealand. This document may also be available through commercial online services and may be viewed and reproduced in accordance with the conditions applicable to those services. 9