Minister welcomes changes to criminal procedure bill

Hon Simon Power
Minister of Justice

14 July 2011 Media Statement

Minister welcomes changes to criminal procedure bill

Justice Minister Simon Power today welcomed the Justice and Electoral Select Committee’s recommended amendments to the Criminal Procedure (Reform and Modernisation) Bill.

The bill contains the most significant reforms of criminal procedure in 50 years.

“The majority of the submitters supported the bill’s overall aims of modernising and speeding up the criminal justice system, while ensuring a defendant's right to a fair trial,” Mr Power said.

“However, some concerns were raised about aspects of the 526-page bill which have resulted in the committee recommending a number of clarifications and refinements, all of which the Government is adopting.”

Significant changes to the bill include:

• Providing greater clarity that the requirement for a defendant to identify issues in dispute does not mean the defendant is required to divulge facts or evidence which they intend to rely on, or any witness they intend to call.

• Widening the grounds for ordering a retrial for a defendant who has been found guilty in their absence (if the court is satisfied that the defendant does not have a reasonable excuse for not attending). The grounds for retrial are: the defendant satisfying the court that their defence had a reasonable prospect of success had they attended the trial; or the defendant having a reasonable excuse for not attending which was unknown to the court at the time and it is in the interests of justice that there be a retrial. In addition, the court must order a retrial if it is satisfied that the defendant was not notified of the trial.

• Enabling a defendant to comment at trial on a co-defendant’s failure to identify issues in dispute, to ensure they are not adversely affected by their co-accused’s lack of co-operation.

• Enabling costs ordered against a party for not co-operating with procedural requirements to be paid to people connected to the proceedings who incurred additional costs because of the non-compliance (such as witnesses).

• Removing the requirement that second appeals to the High Court and Court of Appeal must be on a question of law, and providing that leave for appeal may be granted if the appeal is in the interests of justice – that it involves a matter of general or public importance, or a substantial miscarriage of justice may have occurred or may occur unless the appeal is heard.

• Removing from the bill reverse onus provisions carried over from previous legislation that the Attorney-General concluded were unjustified under the New Zealand Bill of Rights Act.

• Splitting the bill’s single offence and penalty structure for publishing suppressed information into a two-tiered system to better reflect the levels of culpability related to these actions. The two-tiered system includes:
o A new offence of knowingly, or recklessly, publishing suppressed information. This will be covered by a maximum fine of $100,000 for a body corporate and a maximum term of 6 months’ imprisonment for an individual.
o Strict liability (no intent required but defendant able to prove total absence of fault) for publishing suppressed information, as currently in the bill. This will be covered by a maximum fine of $50,000 for a body corporate and a maximum fine of $25,000 for an individual.
o
• Removing the proposed offence concerning the liability of Internet Service Providers (ISPs) for breaching a suppression order if it knows, or has reason to believe, it is hosting material in breach of a suppression order and fails to prevent access to it. Instead, the focus will be on the person who breaches suppression (addressed in the new offence of knowingly or recklessly publishing suppressed information) as opposed to the host of that content (however, in some circumstances content hosts will be liable under the primary offence provision). The Law Commission is currently conducting a review of regulatory gaps in new media and the regulation of media on the internet is being considered as part of that.

Other reforms the bill contains include:

• Requiring the court to take into account a defendant’s compliance with procedural matters as a mitigating or aggravating factor at sentencing.
• Allowing the court to impose cost orders against the prosecution, defendant, and defence counsel if it is satisfied that they have failed, without reasonable excuse, to comply with a procedural requirement.
• Allowing greater flexibility to continue with a trial when jury numbers fall to 10.
• Ensuring guilty pleas are entered as early as practicable to help avoid unnecessary delay.
• Promoting out-of-court discussions between parties so there are fewer adjournments and shorter hearings.
• 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.
• Making it harder for the names of defendants to be suppressed in court, including for so-called celebrities.

Mr Power said the reforms have the potential to free up to 16,000 court sitting hours each year by delivering benefits which include:

• 43,000 fewer court events.
• 1,000 to 1,400 fewer cases that need to be designated for trial by jury.
• 300 to 600 fewer cases that actually proceed to a jury trial.
• Shaving about 13 weeks off the average time to complete a jury trial (currently 16 months in the High Court and 12 months in the District Court).
• Savings of about $24.3 million over a five-year period.

“The reforms will ensure more timely justice for victims, witnesses, defendants and the community.

“This bill has been a long time in the making, with its origins found in three Law Commission reports published between 2001 and 2005.

“These reports fed into the current project which began in 2007 and involved 16 discussion papers and a draft bill plan being released for consultation with the judiciary and lawyers before the final bill was introduced.”

Mr Power thanked the Law Commission and the Justice and Electoral Select Committee and chair Chester Borrows for their work on the bill.

“I’m confident this bill will provide an enduring legislative framework for criminal procedure which will ultimately enhance public confidence in the system.”

The Government intends to pass the bill before the end of this Parliamentary term.

The committee’s report and the bill can be accessed at www.parliament.nz

Further information about the background to the bill, including the Cabinet papers can be found here.

ENDS