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Getting arrested is not a sign of guilt

Getting arrested is not a sign of guilt

by Annemarie Thorby, 15 November 2010

New Zealand's justice system is going through another major change this week.

The Criminal Procedure (Reform and Modernisation) Bill has just been signed off by Cabinet. The end result is that it will be harder and harder for people accused of a crime to defend themselves.

The option of trial by jury will be completely scrapped for many people. From next year, only those facing a possible sentence of three years or more will be able to select a jury trial. Up until December 2008, that was an option available to anyone facing a sentence of more than three months. But the first Criminal Procedure Bill changed that.

This week's Criminal Procedure Bill is actually Part 2 of the Criminal Procedure (Simplification) Project introduced by Labour in October 2007. Both Bills are supposedly part of a package to primarily address the long delays that can occur in court cases and to save the state thousands of dollars. However, what they are, are part of a consistent chipping away at our legal system to ensure that the scales of justice are more than ever balanced firmly in favour of the state.

The first Bill ensured that unanimous jury verdicts ceased to exist, it introduced exceptions to the double jeopardy rule, and introduced written pre-trial evidence as standard procedure.

With Part 2 this week, not only is the right to a jury trial completely changing, but other core principles are getting tossed on their head. When this Bill becomes law the norm will be that counsel must attempt to resolve cases before a hearing, and the defence will be required to identify issues in dispute prior to the trial. A jury trial will be allowed to continue when the jury numbers consists of only 10. And, if the judge is not satisfied that a defendant has a reasonable excuse for their absence, a courtcase can go ahead without the accused person's presence. I wonder what a 'reasonable excuse' is? Once, on the morning of one of my own court cases, I had to take my year old daughter to A&E. She had eaten a poisonous plant. That was not a reasonable excuse. Instead of spending the afternoon with my upset daughter, I had to leave her with friends and defend myself in court.

The Criminal Procedure Bills (both Part 1 and Part 2) however, are just the tip of the iceberg. The last few years have seen many fundamental changes to our justice system. These include:

  • the abolition of the partial defence of provocation,

  • the 'claim of right' defence can now only be used by people who believe they have a right to the property involved in the alleged offending (this could be an interesting legal argument used up and down the country, including by Ngati Kahu people recently arrested on their land in Taipa.),

  • more people have to give DNA samples and from next year all arrested people charged with an imprisonable offence will automatically have DNA samples taken,

  • courtroom video links. People remanded in custody now can appear in court via a video link from prison,

  • our own version of the infamous California three strikes law and you're out,

  • legal aid laws have changed, and if (when) the Legal Services Bill becomes law an accused person will not have the right to choose their own lawyer,

  • longer sentencing laws have been passed and changes to parole mean that people serving a sentence of 12 months or less are not entitled to parole,

  • police can cease a person's assets on suspicion of a crime. No criminal activity has to be proven in a court. The onus is moved from the state to prove guilt, to the individual to prove that they have committed no criminal activity.

This reminds me of the the Search and Surveillance Bill. This Bill is currently wending its way though Parliament and it also turns core concepts of justice on its head. It also swings the burden of proof away from the state and onto the individual. Through both Production Orders and Examination Orders a person will be obliged to assist the state in their own prosecution.

What is happening in NZ is a massive assault on two core principles of so-called justice. The core assumption that a person is innocent until proven guilty and that it is the state's role to prove a person's guilt beyond reasonable doubt are disappearing.

However, getting arrested is not a sign of guilt.

I find it inconceivable that we are allowing these laws to pass through Parliament.

And for those people who say that we have the Bill of Rights to protect ourselves, it may not be there for much longer. National has already given notice that they are also going to be reviewing that legislation.


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