Criminal Procedure (Reform and Modernisation) Bill

3rd Reading; Tuesday 4 October 2011; 3.50pm
Rahui Katene, Justice Spokesperson for the Maori Party

I am extremely pleased to be speaking on this Criminal Procedure (Reform and Modernisation) Bill because I believe it is extremely apt timing to be considering the concept of reform and modernisation of the criminal justice system.

And I can do no better this korero, by making reference to a ground-breaking speech given by my colleague, Dr Pita Sharples, in the weekend just gone.

Dr Sharples brought the attention of the nation to the fact that the justice system, including the police, courts and corrections, systematically discriminates against Māori.

And although this is an undisputed fact made by authorities no less than the Ombudsman Mel Smith; former Police Commissioner Peter Doone; veteran Maori legal authority, Moana Jackson; or the head of Rethinking Crime and Punishment, Kim Workman no Ngati Kahungunu; I do want to reassert the context from which we would hope any review of criminal procedures might benefit from.

And this is the situation by which Maori offenders are more likely to have police contact; to be charged; to lack legal representation; not to be granted bail; to plead guilty; to be convicted; to be sentenced to non-monetary penalties; to be denied release to home detention.

For the same crimes,
• Māori are arrested at three-times the rate of non-Māori;
• Māori are four to five times more likely to be apprehended, prosecuted and convicted than their non-Māori counterparts—and in the case of Māori aged 10-13 this is six times more likely;
• And Māori are seven times more likely to be given a custodial sentence and eleven times more likely to be remanded in custody awaiting trail;
•
It is hardly breaking news therefore Mr Speaker, but for most Māori, justice in New Zealand is not positive; it is a system that is unfair, biased and flawed with ongoing and consistent prejudice.

What we need, therefore, as indeed the Police admitted yesterday, is a focus on crime prevention and innovative approaches to policing.

New Zealand needs fresh approaches to reducing the impacts of offending on our communities and we hope that in this Criminal Procedure (Reform and Modernisation) Bill we can help to reduce the stress upon families who find themselves presented in the justice system.

Our review of the criminal justice system will investigate and analyse the facts as the basis for better policy.

In the course of our consultations with Minister Power about this bill, we came to the realisation that should we successfully achieve the amendments we sought, there could be much in this Bill which might assist our review.

We support the concept of promoting discussions between parties to reduce adjournments and shorter hearings.

We endorse also the proposal that guilty pleas be entered as early as possible to help avoid delay.

Although I would just bring to this debate an anecdote that was sent in to us following our comments about the need for a review of the criminal justice policy.

We received an email reflecting on the comments of a retiring being interviewed on Radio New Zealand about two or three years ago.

One of the questions the Judge was asked was whether he had any regrets.

His reply was that yes, he was sad about one thing. He said that Maori coming before him were usually very honest and always admitted to what they had done.

Now then, when someone admits to breaking the law, they're not entitled to a defence, they just turn up to be sentenced.

On the other hand when a person states they are not guilty, they are then entitled to defend themselves and with a good lawyer, they may well get let off.

The correspondent put it very simply, and I quote from her email:

But, isn't lying fradulent? So, you commit a crime, go to Court, swear an oath on the Bible to tell the truth etc etc and when asked "how do you plead"? you reply NOT GUILTY! So after swearing to tell the truth, you lie, and get entitled to a defense! Something is not right here!.

It is a very interesting question, and unfortunately I am not convinced that this Bill provides us with an answer, other than whatever process is followed it will be more efficient.

That said, I do want to acknowledge the Minister for his commitment to working alongside us, in order to achieve our support for this Bill.

This bill most certainly does not provide all the answers – hence our call to conduct a systemic review of ethnic bias in the criminal justice system – but it does provide some immediate responses to improve the system, and for that we are happy to offer our support.

We are particularly pleased in the decision to limit the discretion of the court to only proceed to procedural hearings in the absence of the defendant - that is hearings where determinations of guilt or innocence will not be made.

As the Attorney General himself admitted, this Clause was formerly inconsistent with the rights affirmed by section 25e in the New Zealand Bill of Rights Act that is that everyone charged with an offence has the right to be present at the trial and to present a defence.

We are very pleased with the compromised position of the Minister on the reduction in the threshold for the right to a jury trial from three years to two years.

We fully accept that there will be some people who feel that justice has not been served and may feel vulnerable having a sole judge grant the power of a prison sentence.

In the submission made to the select committee by David Mathias, he specifically referred to this provision, noting and I quote:

“the right to jury trial is important for reasons based in fundamental community values and the bill should reflect public views”.

Accordingly the Minister agreed to set the jury trial threshold at two years and to remove the exceptional circumstances put forward earlier.

Another issue of concern for the Maori Party was the clause described as the loss of the right to silence. This was the requirement that the defence disclose before trial issues in dispute. We welcome the decision by the Minister to remove these provisions from the Bill.

Mr Speaker, I return to the context in which this Bill is located.

No-one can ignore that there are real issues that need to be addressed when we look at Maori over-representation particularly in our prisons. 90% of prisoners have significant literacy issues; 90% have drug and alcohol issues.

The Maori Party review is not an attack on the justice system, it’s a search for a better way to achieve justice.

We believe that there is a constructive platform that has been established by this new reformed Criminal Procedure (Reform and Modernisation) Bill and we are looking for a brave government to go even further and investigate the longheld concerns around ethnic profiling and institutional racism across all levels of the justice system.

And I want to finish with one simple statement that every member of the Maori Party immediately could relate to, because it is simply one of those accepted realities of the every day life of being Maori.

Kim Workman, Director of Rethinking Crime and Punishment, has said that this is not a new issue. In fact he referred to an 2009 study by the Ministry of Justice, which "showed that Maori over-representation had reached an alarming level, not only with police apprehensions, but elsewhere in the system”.

Workman shared an example which was along the lines of “when the Pakeha passengers of a Maori youth won't let him drive his own car, because they keep getting stopped by the police, there is something seriously wrong”.

Believe it or not, that is an ongoing reality in our lives, in the lives of our children and our mokopuna, and it reflects a criminal justice system in which decisions are made on factors other than evidence of a crime being committed.

A truly reformed and modernised criminal procedure bill would look seriously at situations such as these and devise solutions to achieve a system of justice which is fair to all.

Authorised by Rahui Katene, Parliament Buildings, Wellington

ENDS

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