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Criminal procedure bill

Written By: - Date published: 7:32 am, November 16th, 2010 - 65 comments
Categories: human rights, law, national - Tags: ,

Simon Power yesterday introduced a shiny new “Criminal Procedure (Reform and Modernisation) Bill” to Parliament. The Nats are touting it as “the biggest change to the criminal justice system in 50 years”. Most reaction so far has been lazily positive, repeating points from the press release. Here’s one typical example:

Changes to the justice system will mean 43,000 less court events every year, less cases going to trial and more flexibility with juries, according to the government. Parliament has today signed off on a justice bill that will bring in some of the most significant changes to court procedures in decades. Justice Minister Simon Power said the 526-page Criminal Procedure (Reform and Modernisation) Bill is the biggest shakeup of the criminal justice system in 50 years.

“It is unacceptable that there are thousands of unnecessary court appearances each year, and that it takes an average of 16 months to complete a jury trial in the High Court and 12 months in the District Court,” he said. The bill will force the defence to identify and disclose any issues before a trial and will allow the court to proceed without a defendant, if the defendant does not have a reasonable excuse for being absent. …

Guilty pleas will be encouraged as early as possible, and out of court discussions between parties will be promoted to ensure there are fewer adjournments and shorter hearings. Only the most serious and complex cases will got to trial.

Power said the changes have the potential to save $24 million over five years and free up 16,000 court sitting hours each year.

Sounds good eh? There certainly is a problem with overloaded courts. A little nip here, a tuck there, an voila, much more efficient. But hang on a minute – what are we nipping and tucking? I have seen only one report that critically examines the issue:

Rights to jury trial to be restricted

Justice Minister Simon Power today introduced a bill which he says proposes the biggest changes to the criminal justice system in 50 years. Among the most drastic changes under the Criminal Procedure (Reform and Modernisation) Bill are reserving a jury trial to only the most serious cases – which carry a minimum of three years imprisonment. …

High profile barrister Barry Hart says the bill is a direct attack on people’s basic rights.

“It is unduly restrictive. Another example, month by month, we seem to be losing rights of the basic individual,” he says. Mr Hart agrees the criminal justice system needs a revamp but says the new bill fails to address the real crux of the issue.

“There’s no two ways about it there needs to be a speedy trial process, but here for reasons I can never understand, we have no priority system for people in custody.”

The barrister also slams the idea of a trial proceeding without a defendant. “[It’s] completely wrong in principle, I’ll always be against that process. If you have a trial in the absence of an accused it’s not really a trial is it.”

Trial by a “jury of our peers” is a one of our fundamental legal rights — should we be so quick to abandon it? The origins of habeas corpus are even older (back to the twelfth century) — what kind of trial is it without the defendant present? And what other devils are lurking in the details?

I await the reaction of the legal community with great interest (calling Andrew Geddis!). But for now I share the concerns of Barry Hart — it looks like the Nats are engaged in yet another attack on our fundamental rights.

Update: Further concerns expressed.

65 comments on “Criminal procedure bill ”

  1. higherstandard 1

    Aren’t the majority of trials now non-jury.

    I’d tend to have more faith in the judge making a decision based on the law rather than a jury of peers – whatever that means in the NZ setting.

    • Tanz 1.1

      Totally agree. Some of the outcomes of the most infamous jury trials of recent years have been real shockers. The Bain trial for one, and the Kahui trial for another. Also, I’m sick of hardened crims being let out early, only to maim and kill yet again. Some have been walking around with over one hundred violent offences to their name. How many lives are taken before their freedom is finally gone? How is this justice? Go Power, and bring down the alcohol limit, as most Kiwis want, while you’re at it.

      Too often the high-profile jury trials are run by the left-wing, apologist, tabloidish MSM media.

      • Vicky32 1.1.1

        I have never understood why the Right are so desperate to re-litigate the Bain trial and screech that they know better than the jury that he’s guilty – the same with Kahui…
        Get over it boys! A (supposed) patricide isn’t one, and a Maori guy isn’t guilty! Well, maybe the jury decided that because they’re correct?
        “Hardened crims” – you’ve had too much talkback, you had better lay off while you still have a brain…

        • millsy

          I’m left, and I think Bain is guilty.

          • lprent

            I have absolutely no opinion about his guilt. However I don’t think that there was enough to convict him in the first place.

          • Vicky32

            But why on earth? (I fear I am going to regret asking…) He spent as long in prison as if he had been guilty, but that’s not really the point… as Lynn says, there wasn’t enough evidence to convict him in the first place… As my son said at the time, angry Facebook members and pages notwithstanding, a jury who had the facts, found him not guilty, and that should be the end of it. I’ve seen magazine articles putting the case for the innocence of all sorts of people – Peter Ellis (IMO, guilty as charged!), David Tamihere (who knows?) Mark Lundy (there is a case for his innocence, apparently) and last but not least, the one that really makes me angry, Scott Watson. There was no evidence at the time that the ‘Blenheim friends’ as the media called them were dead… and what ever happened to not finding someone guilty of murder in the absence of a body, or at the very least, evidence that someone had actually been murdered? My father told me a spine-chilling story when I was a child, a true story that had established the principle that a body was needed… In the 14th (I think) century, a man was charged, convicted and executed for the murder of his teenage niece. Neighbours testified that they had heard her say “Oh Uncle, don’t kill me!” and she was gone..
            He swore he was innocent, and my Dad added the detail that he had declared that no grass would grow on his grave and to that very day it never had… I don’t know if that part of it is true… but I do know the next part… the niece turned up back to the village 5 years later, and said “Where’s Uncle, I’d like to introduce him to my husband and child”… turns out she had run away with the boyfriend he’d been telling her off about.
            I have sort of waited for the day that Olivia Hope and Ben Smart come back to Blenheim and say “Dead? Of course not! We went to Sydders and started a business…” Although as years pass that gets less likely, although their upper class origin seemed to me to have much more to do with the media interest than any real belief that they had been murdered. I remember the first TV items being played when they hadn’t been missing for 24 hours! Imagine a solo mother going to the police when her flaky teen daughter had been missing 20 hours – she would be told “Oh, she’s probably run off with a boy, come back when she’s been gone for 6 months”.

    • You must be kidding ! A lot of judges have Right -Wing connections and ideals . It is the nature of most judges to be on the Centre Right at least and this very often clouds their decisions,.
      I very much doubt that Unionists , Maori and the unemployed and underprivileged would get a fair deal with some Judges.
      The well of and privileged in society would be more likely to escape prison and a severe sentence. Its true some jury trials have dubious decisions but it is far superior to a single biased judge. I personally believe this bill is dangerous and should be opposed tooth and nail!!!

  2. QoT 2

    And christ on toast could TVNZ’s editors learn the difference between “less” and “fewer”? I wouldn’t normally get too pissy about it except that the Government’s press release uses the correct word so some munter has to have “corrected” it.

    • Richard 2.1

      I think that replacing a few words in a press release with synonyms is meant to count as “analysis”.

    • Bill 2.2

      Christ on toast? Possibly more appetising than wafers, I guess.

      • QoT 2.2.1

        Goes with Virgin-Mary-on-grilled-cheese.

        • Bill

          God in a pickle on the side?

          • Vicky32

            Enough already guys, with the ‘clever’ atheist witticisms, please! I am vomiting in my mouth… It ain’t anywhere near as funny as you think it is…

            • QoT

              Um … who’s atheist? Because a casual-if-blasphemous expletive, plus a reference to far-too-common “miraculous” toast-visitations, plus an in-theme variation … really has, um, nothing to do with you or any person of faith. Would you prefer if I express my bafflement by saying “Sweet tapdancing Buddha”, or is it purely a “waaaa you can’t blaspheme against *my* faith!!!” complaint you have?

              • Vicky32

                “or is it purely a “waaaa you can’t blaspheme against *my* faith!!!” complaint you have?”
                I seriously would much rather you didn’t blaspheme against anyone’s faith, actually! IMO, ‘miraculous toast visitations’ are (thankfully) not at all common, and an artifact of American general ignorance. So, yes I have a complaint. I remember saying on h2g2 years ago, “how would you like it if I used your Mum’s name as a swearword, hey?” and missing the point bigly, an atheist replied to me, “Go ahead, I hate my mother”…
                Charmed, I am sure!

                • QoT

                  I think that analogy is pretty crap, really. My mother is my mother, whereas Christian theology is fairly well embedded in event the most secular Western societies.

                  • Vicky32

                    No, the analogy is not crap. If you feel free to insult my religion, and I can’t retaliate (maybe because you don’t have one – but mainly because I am not that kind of person)… then your family is an analog – presumably (except obviously in the case I quoted above) something you have an attachment to…
                    Is that why people like to eff and blind and swear against Christ? Because “Christian theology is fairly well embedded in event the most secular Western societies.”?
                    Because I have never understood it…
                    I grew up in an atheist household. When he was a child, my brother decided he would swear by saying ‘Buddha’. (There was no blasphemous swearing in our household at all… which might be evidence for your assertion, but on the other hand might just be because my parents were heavily into courtesy.)
                    My brother gave up the swearing by Buddha when he was older – simply because of – yes, courtesy.
                    (By the way, the atheist parents became Christians, but that’s another story.)

                    • QoT

                      I have a hard time believing that you honestly don’t understand, Vicky, that swearing by saying “Christ” or “Jesus” or “God dammit” is a common occurrence in our society because of the embedded nature of Christian theology. It becomes second nature in the same way that saying “mate” and “like” and “you know” does because it is ubiquitous.

                      Saying “Jesus tapdancing Christ” is not intended as a specific insult directed specifically at you, whereas attacking my family and using their names as derogatory terms can only be a personal attack.

                      And as I said below, sorry, but you’re not actually that important.

                      It is clearly not just “another story” that the atheist parents became Christians or you wouldn’t mention it – except to make presumably some smarmy point about how your faith is better than everyone else’s.

            • NickS

              lawl, this is nothing compared to Cra

              • Vicky32

                “I have a hard time believing that you honestly don’t understand, Vicky, that swearing by saying “Christ” or “Jesus” or “God dammit” is a common occurrence in our society because of the embedded nature of Christian theology. It becomes second nature in the same way that saying “mate” and “like” and “you know” does because it is ubiquitous.”
                Speak for yourself! Normal, ubiquitous – no, it isn’t…. And I don’t get your rationalisation about ‘the embedded nature of Christian theology” I just don’t understand how that makes it all right!

                “Saying “Jesus tapdancing Christ” is not intended as a specific insult directed specifically at you, whereas attacking my family and using their names as derogatory terms can only be a personal attack.”
                Missing the point again! This is getting way old… I notice too, that you say that your blaspemous language is an insult directed specifically at me. Thanks a bunch! What have I done to deserve that? My point was about attachment and loyalty…

                “And as I said below, sorry, but you’re not actually that important.”
                If that were true, why the hostility?

                “It is clearly not just “another story” that the atheist parents became Christians or you wouldn’t mention it – except to make presumably some smarmy point about how your faith is better than everyone else’s.”
                Jumping to conclusions. What I meant was that I am not telling it here, it’s not relevant to political debate. You are getting on my wick with your bitter and twisted remarks about me. Smarmy? Grow up.
                My faith means as much to me (probably more) than your unfaith does to you. I could make with the insults, but I won’t because I am not that kind of person.

                • QoT

                  Vicky, you clearly are not interested in actually reading my comments or acknowledging your own tactics (if you’re not going to tell the story WHY BRING IT UP?).

                  Captcha: avoid – I intend to.

                • NickS


                  That post wasn’t even meant to be there, I closed the tab it was since my motivation was all out, and was perplexed to see in the recent post list later that night. But since you’re choosing to tone troll and treat the stupidity of religion and non empirical beliefs as something beyond mocking, my troll blood compels me to post what I was going to post. Fear ye mortal, for we shall desecrate crackers with mockery:

                  Further mocking:

                  And lastly:
                  Marcus Brigstocke’s ‘3 Abrahamic Faiths’ Rant .

                  And yes, your are more than welcome to your beliefs, but those beliefs do not give you any right to define what others can and cannot say, or in this case, mock.

                  Oh yeah…

                  My faith means as much to me (probably more) than your unfaith does to you. I could make with the insults, but I won’t because I am not that kind of person.

                  Except you haven’t probably seen anything I’ve written on atheism and religion in other places, and therefore such an assumption is based off stereotypes, which being stereotypes are usually craptastic at describing individuals. And then there’s the bragging over how much you care, and how much of a good person you are for not insulting me.

                  It’s soo cute.

                  And so fail troll, since I’m merrily grinning while reading your post.

                  • lprent

                    Very old testament of you I must say…

                  • Vicky32

                    NickS, you have no way of knowing how much time I used to waste on atheist sites, so you pretty well guarantee I have either seen what you have written, or exact copies! (It seems to me you people really need to come up with some new, and perhaps convincing) arguments.
                    I see I have been declared a troll. As you wish! Par for the course really – you guys are never too keen on free speech.
                    But – meh!

                    • NickS

                      It’s no wonder you’re still a christian then, for you seem unable to think your way through the relevant parts of my post, instead making a series of fallacious assumptions which I shall enjoy gnawing on.

                      NickS, you have no way of knowing how much time I used to waste on atheist sites, so you pretty well guarantee I have either seen what you have written, or exact copies!

                      Except I’ve been down in the coal mines, when I was active, learning and changing my understandings of atheism away from many of the main sites, and my ideas are based around using the concept of solution-space and epistemological uncertainty. On top of that fact, that without seeing what I’ve written, you can’t make any assumption on my beliefs/strength etc.

                      (It seems to me you people really need to come up with some new, and perhaps convincing) arguments.

                      It’s not our fault when christians can’t think and/or ignore the major faults in your religious beliefs, which with christianity theodicy, aka the problem of evil and deconstructivist critiques of the need for “evil”. Along with the usual critiques of the truth of the bible, evidence for such entities as souls, and the ye olde “but there must be something!” meme, thanks to teological thinking.

                      And just to make it clear, I’m referring to other people, not you, for all I have is this thread, and there’s insufficient data to go on.

                      I see I have been declared a troll. As you wish! Par for the course really – you guys are never too keen on free speech.


                      Get back to high school and relearn critical reading please. Because I said that you where using tone trolling, which is somewhat different than arguing you’re a troll. Especially when there’s obvious evidence to the contrary with your behaviour in this thread and others that marks you as being serious, and not a full blown troll.

                      Also, theists are going to get mocked/called trolls when they insist on bringing up tired old arguments that have been seen and debunked time and time again. More so when their behaviour involves not answering questions and ignoring rebuttals without even a excuse, along with missing teh point when they don’t have the skills to understand a given argument and other abuses of formal and informal fallacies.

                      As for freespeech, how hypocritical of you to accuse atheists and others of their freedom of speech to make religious jokes. I should also mention that noting you’re tone trolling doesn’t limit your freedom of speech, it’s merely an observation that instead of dealing with an argument, you’re far more interested in the tone. Which is a waste of other participates time and effort, and frankly ironically fucking rude.

                      But – meh!

                      Apathy fail, if you couldn’t be truly bothered you shouldn’t have bitten the bait and just gone “meh” instead of making further crap-posting.

                  • Vicky32

                    By the by, my remarks were addressed at QoT, not you… the reply button under his post was not working…

  3. HS the changes to what charges can actually be subject to jury charge is small.

    In 2008 there were only about 140 jury trials for such cases. The reforms do not make these trials go away, all that happens is that a Judge alone will preside. Some court time will be saved but not a great deal.

    My strong experience is that one of the main reasons with the clogging up of courts is the lack of Judicial resources. Cases can be remanded many times because there are not enough Judges to deal with the cases listed for the day. Appointing some more Judges would go a long way to unclogging the courts.

    Guilty pleas are already promoted through some reasonably hefty sentence discounts. I do not know how much further you can go on this.

    And attacking the presumption of innocence by requiring some disclosure by the defendant of their defence is bizarre and scary.

    This is not radical change. It is a hotch potch collection of changes, some idiotic, dressed up as reform.

  4. Tigger 4

    Surely Pansy Wong is a prime candidate for these new speedy trials.

  5. Geoffrey 5

    What QoT said (at 7.56am) +1

  6. I thought I would have a look at one of Power’s claims. His press release says

    Reserving jury trials for the most serious and complex cases, including by raising the threshold for a defendant electing a jury trial from crimes carrying a penalty of more than three months’ to those carrying more than three years’ imprisonment. This is expected to cut the jury trial workload by 300 to 600 trials a year (a reduction of 25-45% in the jury trial workload).”

    But there are a few problems with this:

    1. Actual jury trials saved based on 2008 figures have been estimated at 136.
    2. Total jury trials in the District Court in 2008 was 2761.
    3. The proportion of trials that would have been saved is just under 5.

    Is it my maths or is are this administration’s figures screwy?

    • r0b 6.1

      are this administration’s figures screwy?

      If so it wouldn’t be the first time! Thanks for your comments here, as per OP I’m very interested in the reactions of lawyers to this…

    • Bored 6.2

      No Mickey, it is the logic behind the proposals that is screwy.

      NACT claim the changes will save money: wrong as your numbers point out. More importantly it is wrong in principle, justice costs money and it takes time.

      The whole concept that we can apply economics (influenced by the neo lib brand) to the courts is a disgrace, to trade off justice for early guilty pleas based upon the cost to defend, plea bargaining, and any other short cuts that give “efficiency” are going to debase justice.

      To “try” in absentia is jst plain wrong, and these bastards will abuse it.It smacks of totalitarianism a la Stalin and Hitler.

  7. Bill 7

    Hmm. So trails surrounding political activism could have charges laid that are laid only because those charges exceed the three year limit?

    Meaning that the Waihopai three might have been (not too sure of the exact charges that were laid and the sentence that those charges could have attracted) tried by a judge alone, meaning much less liability of ‘natural’ justice prevailing.

    “The bill will force the defence to identify and disclose any issues before a trial..”

    Why? So a defence would be rigid, then? Much less capable of exercising degrees of flexibility in the light of new issues being highlighted by the prosecution? (Prosecution doesn’t have to disclose all issues before trial, apparently.)

    And what about any defence tactic of allowing the prosecution to dig a hole for itself before unveiling a piece of evidence that kills the prosecution case. With prior disclosure, the prosecution could alter their argument….avoid or deliberately downplay an otherwise pertinent issue, in order to get a conviction…as opposed to seeing that justice is served.

  8. ianmac 8

    Bill: “Why? So a defence would be rigid, then? Much less capable of exercising degrees of flexibility in the light of new issues being highlighted by the prosecution? (Prosecution doesn’t have to disclose all issues before trial, apparently.)”
    Exactly. A witness discloses an issue unexpectedly during the trial. The defence deserves the right to shift their defence strategy rather than be stuck with the pretrial declaration as proposed.

  9. Pascal's bookie 9

    From the Stuffy version of the tale:

    Meanwhile, Mr Power has indicated he would like to see a review of the Bill of Rights. Although the legislation was “a benchmark” for conduct, policy and law, it would be naive to think the Bill of Rights Act would not “benefit from a rethink”, he said this week .


    • r0b 9.1

      Absolutely. I’m sure the BORA can be made much more “efficient”…

      • Tigger 9.1.1

        Why do we even need rights? Just do away with them.

        • mickysavage

          A quick hearing in front of the Senior Seargent on the night of the lock up. Just think of all the savings in Courts, Judges and Lawyers.

          Of course good people never need these services.

          • r0b

            If you’re not guilty you have nothing to fear!

            • the pink postman

              Oh dear rOb .Where have you been living. “If you are not guilty you have nothing to fear. ” I believe it was Goebbels who first used that phrase. I agree one has nothing to fear so long as one is not ,Maori, poor , underpriviledged , unionist or any other perceived enemy of the Nats.
              I believe this bloke Power is the most dangerous politician since Sydney Holland. In fact because the influence of TV and the backing of Textor -Crosby he is most likely much more dangerous .

            • mickysavage

              I am sure that r0b was being ironical …

          • millsy

            Why not just do what they did in the American South, and settle it with a noose and tree branch?

            Garth McVicar knows he wants to…

  10. Draco T Bastard 10

    Idiot/Savant put up a post on this yesterday:

    The Bill of Rights Act is very clear: no-one shall be compelled to be a witness or to confess guilt. That’s exactly what Simon Power is proposing they be forced to do. It will be more “efficient” of course. So would forgoing trials entirely and assigning verdicts at random. But the court process is not supposed to be about efficiency and saving money – it is supposed to be about justice. And what we are seeing here is an erosion of justice so that National can give away more tax cuts to its rich mates.

    It really does look like NACT are throwing in even more authoritarian rules so that they can cut taxes to themselves and their rich mates.

  11. gingercrush 11

    And yet nearly all of you would have celebrated the repeal of provocation despite the legal fraternity having real concerns about that.

    • Bill 11.1

      Never been altogether comfortable with that being repealed, to be honest. The Weatherston trial, his ludicrous application of the defence and subsequent media coverage was all a bit too convenient in my mind. I’m not arguing that as a defence strategy it was abused by ‘gay bashers/murderers’ and the like.


      Victims of domestic violence who ‘lose it’ after the latest in a long run of abuses? I think it was a good mitigating defence in those circumstances. Now their circumstances can’t be differentiated.

      • Vicky32 11.1.1

        I feel the same way… The provocation defence ought to have stayed – how often was it used by (alleged) gay bashers, as opposed to others?
        I am sticking my neck out here, which means inviting people to make me a head shorter, but what the hey? Gay people are *not* all plaster saints by virtue of being gay, any more than any other group comprises solely saints!

        • QoT

          Vicky … who gives a crap what any given gay person is like? Their being gay still isn’t a reason for them being brutally killed by wankers with a hypersensitive masculinity complex.

          Sure, you may say “oh I wasn’t saying that”, but frankly as soon as you start acting like the issue is about gay people’s behaviour as opposed to that of their murderers there may be a tiny problem with your logic button.

          • Vicky32

            QoT, you seem to have issues with whatever I say… No one whoever they are deserves being killed – but what I was saying is that I think it’s a bad thing that the provocation defence was got rid of solely because (AFAIK) of its use in the trials of real or alleged gay bashers…
            You may diss me (in fact you have in advance) for saying “I wasn’t saying that”, but like it or not, I wasn’t.

            • QoT

              Um, you’re not that special, Vicky, you just happened to make two comments I took massive issue with on a thread I happened to be getting email notifications for.

              If you want to say that “gay panic defence is not sufficient reason to repeal provocation”, it probably wouldn’t kill you to say that, instead of having a nice victim-blaming rant about gay people. Because that’s what you did say.

              • Vicky32

                Sigh, have it your own way! ““gay panic defence is not sufficient reason to repeal provocation”. That’s my point of view.
                Anche se, eppure, le gente gay non sono gente onesta e buono, secondo me! Eppure si muove…

                • QoT

                  Playing victim because you had your own words held against you probably isn’t the smartest move in this situation, Vicky. Perhaps you could try implying that I’m some kind of coldhearted atheist, or pull the “don’t you have anything better to do??” defence? I just don’t think the judging panel are with you on this one.

                  • Vicky32

                    The judging panel? Self-important much?
                    Leave it please… Picking on me might give you a buzz (it obviously does) but I have better things to do..

                    • RedLogix

                      No you’re not on you’re own here Deb. I’m fairly uncomfortable about the abolition of the ‘provocation’ defense as well. Sure sometimes defense barristers will pull very long bows with it, but almost invariably juries cut them loose on it.

                      But if you’ve seen a bit of life, and understand how most murders are committed by ordinary people who find themselves in extraordinary circumstances they’re tragically ill-equipped to deal with… then you’ll realise that provocation has it’s place. If not as a full-defense, at least as a partial mitigation.

  12. Draco T Bastard 12

    And now it appears that it’s inconsistent with the BoRA as well.

  13. Malcolm 13

    Right to silence, habeas corpus, trial by a jury of our peers, the right not to be detained arbitrarily. Going, going, gone …. with barely a whimper. These are supposed to be fundamental rights of the individual. So much for bourgeois legality. Time for some working-class justice.

  14. Tanz 14

    Key is not Hitler, you know. Paint him black, but it won’t stick.

    • Colonial Viper 14.1

      Yep. Key is definitely not Hitler. Hitler created a network of highspeed autobahns spanning across Germany and in doing so sorted out Germany’s massive unemployment problem. Key built a cycleway and created a couple of dozen labourers’ jobs.

      So agree, Key is definitely not Hitler.

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