Recommendation

The Justice and Electoral Committee has examined the Criminal Procedure (Reform and Modernisation) Bill and recommends by majority that it be passed with the amendments shown.

Introduction

This bill is intended to simplify and reform the framework governing criminal procedure, and to provide an enduring legislative framework that would ensure criminal prosecutions were conducted fairly and without unnecessary delay or further stresses to victims, witnesses, and others involved in the process. This bill proposes significant changes to the categorisation of offences, the pre-trial procedure, the way cases are allocated between the District and High Courts, and the threshold for trials to be heard by a jury. It would introduce a formal case management process, and introduce sanctions and incentives to promote compliance with pre-trial procedural requirements. It would also provide for the use of electronic technology in criminal procedure, and address other specific matters relating to criminal procedure.

The Government expects the reforms proposed in the bill to result in 43,000 fewer court events, between 1,000 and 1,400 fewer cases being designated for jury trial, and between 300 and 600 fewer cases actually proceeding to a jury trial, each year.

This commentary addresses the significant changes we recommend to the bill; changes of a minor or technical nature have not been included.

Defence requirement to identify issues in dispute

We recommend that clause 64 be amended in order to remove the term “particular” from clause 64(1)(a) and 64(1)(b), to clarify that the requirement to identify elements of the offence that are disputed or defences that the defendant intends to rely on would not require the defence to disclose its factual case to the prosecution before the start of the trial.

We also recommend inserting new clause 64(1A) to make it clear that the requirement to identify the issues in dispute would not require the defence to identify any disputed evidence that the prosecution intended to present, any witnesses the defendant intended to call, or any evidence the defence intended to present.

We recommend amending clause 65 to make it clear that, if the court granted the defendant leave to identify an issue out of time, no inference could be drawn, and no comment could be made to the jury, in relation to that issue.

We also recommend inserting new clause 65A, which would make it clear that nothing in clauses 64 or 65 would limit the conduct of the defendant’s case at trial.

Adverse inferences

We recommend an amendment to clause 106, and inserting new clause 112A, to allow a defendant to comment to the fact finder about a co-defendant’s failure to identify the issues in dispute. This change would ensure that in situations where co-defendants ran defences against each other, a defendant would be allowed to point out a failure by a co-defendant to notify issues in dispute adequately.

Proceeding in the absence of the defendant

We recommend inserting clause 128A to provide a clear statement that the court may not sentence a defendant in his or her absence for category 2, 3, or 4 offences. If the defendant did not appear for sentencing, this new clause would allow the court to issue a warrant for the defendant’s arrest.

We recommend amending clauses 130 and 131 to widen the grounds on which a retrial could be ordered if a trial were conducted in the defendant’s absence. We are aware of concern about the possible impact of a greater ability to proceed in a defendant’s absence on people who had not consciously or deliberately avoided appearing in court. We consider that the best safeguard against this is to broaden the grounds for a retrial. We also consider that the grounds for a retrial should be the same regardless of the offence category concerned.

Therefore we recommend that clause 130 be deleted and replaced with a new clause 130, to align the grounds for ordering a retrial for a category 1 offence with those for category 2, 3, and 4 offences. We also recommend amending clause 130 to allow a court to order a rehearing for sentencing on a category 1 offence if the defendant was absent at the initial hearing.

We further recommend that clause 131 be deleted and replaced with a new clause 131 which, as for category 1 offences, would require the court to order a retrial of a category 2, 3, or 4 offence if satisfied that the defendant was not notified of the trial. We also recommend that a new ground for a retrial be included, allowing the court to order a retrial if satisfied that the defendant had a reasonable excuse for their absence which the court was unaware of at the time of the initial trial and that it would be in the interests of justice for a retrial to be held.

We also recommend extending the timeframe in which an application for a retrial must be made, under clauses 130 and 131, from 10 working days to 15 working days.

We also recommend amending clause 125(2)(c) to provide for a defendant to be excused from being present at a hearing solely concerned with the timing of a trial or the admissibility of evidence.

Suppression

We recommend that clause 198, the interpretation clause, be amended by replacing the definition of “identifying information” with a new definition of “name”, which includes any particulars that are likely to lead to the person’s identification. We believe this change would strike the appropriate balance between ensuring people receiving name suppression are adequately protected, and at the same time not placing too onerous a burden on publishers.

We also recommend that clauses 204 to 208, 213, and 215 be consequentially amended to omit references to identifying information and to replace them with references to address or occupation.

We recommend that clause 200, which states that court proceedings are generally open to the public, be amended to make it clear that the provisions of this clause would be subject to restrictions contained in clause 97 of the bill and other enactments.

We recommend amending clause 201(1)(f), which would grant the power to clear the court, by replacing “any police employee” with “the police employee in charge of the case”. This would align the clause with the provisions of clause 203(1)(f). We note that the judge would retain the power to allow other police employees to remain present if this was appropriate to the particular case.

We recommend inserting a new definition of a “member of the media” into clause 202(2) by inserting replacement subclause (2)(a). This change would delete the term “media reporter” and replace it with “a person who is reporting on the proceedings”. However, the criteria for considering someone to be a part of the media for the purposes of remaining in court during a closed session would be retained.

We recommend amending clause 204(3) to clarify that the fact a defendant was well known would not of itself mean that publication of his of her name would result in extreme hardship for the purposes of the ground for suppression set out in subclause (2)(a). We also recommend that clause 204(5) be amended to allow interim suppression orders to expire automatically without judicial intervention.

We recommend amending clause 210 by inserting replacement clause 210(1), which would restrict the power of court registrars to make only name suppression orders under the provisions of clause 204(4), and to the defendant’s first appearance only. In the bill as introduced the powers of registrars to make suppression orders was unintentionally extended, and this change would rectify this error. We also recommend that clause 210(1)(b) be reworded to require the consent of both parties before a registrar can make a name suppression order.

We recommend amending clause 214 in order to bring it into line with the new definition of media in the proposed change to clause 202. We also recommend that clause 214(2) be amended to make it clear that the media could initiate suppression proceedings themselves, and not just be heard on existing proceedings.

We recommend that clause 216 be deleted, as we do not consider it an effective mechanism for policing breaches of suppression orders on the internet. We recommend inserting new clause 215(3), which would ensure that internet content hosts were not liable unless they knew or were aware of a risk the information was suppressed. This provision would not apply to people who posted suppressed information on a website or other accessible electronic content system that they themselves ran.

We consider it more appropriate for internet content hosts to be liable under the general offence provision if they knowingly or recklessly publish suppressed information.

We also recommend that clause 215 in the bill as introduced be further amended to introduce a two-tiered approach to suppression offences and penalties. This would create two offences—one offence covering knowingly or recklessly publishing suppressed information, and the other a strict liability offence.

Awarding of costs

We recommend that clause 361(8) be amended to permit the court to order any costs awarded under this clause which are intended to compensate any person connected with the proceedings to be paid (in full or in part) to any person or persons connected with the proceedings.

We also recommend that clause 361(2) be amended to allow costs to be imposed for failure to comply with regulations made under the Criminal Disclosure Act 2008.

Factors in sentencing

We recommend that clause 431(2) be amended to reflect more accurately the intent of the provision. Clause 431 would insert new section 9(2)(fa) into the Sentencing Act 2002. In the bill as introduced, new section 9(2)(fa) recognises procedural compliance by the defendant as a mitigating factor in sentencing. We believe that this section should be redrafted to state that steps taken “other than steps to comply with procedural requirements” are to be considered mitigating. This change would ensure that the defendant’s compliance with procedural requirements was mitigating only if it went beyond the statutory obligations.

We also recommend amending proposed new section 9(2)(fb) of the Sentencing Act, also contained in clause 431(2), to state that only an adverse impact on the defendant due to the failure of the prosecution to comply with procedural requirements before the prosecution’s conduct in this respect can be mitigating. This would align this mitigating factor with the new aggravating factor in clause 431, which would require that the effect of the offender’s non-compliance with procedural requirements on victims and witnesses be adverse before it could be taken into account as an aggravating factor.

Bail conditions

We recommend amending clauses 402 and 405 to apply only to people who have pleaded guilty to or been found guilty of an offence and are awaiting sentence. Clause 402 in the bill as introduced would amend section 8 of the Bail Act 2000 to allow defendants to be remanded in custody if there is a risk that they will not take the necessary steps to ensure the proceedings are advanced within a reasonable timeframe. Clause 405 is intended to amend section 31(3)(c) of the Bail Act to allow the courts or registrars to impose bail conditions in order to ensure that defendants take the appropriate steps to progress their cases without delay. We believe that these provisions could be difficult to apply before conviction, and consider it more appropriate that they be reserved solely for those awaiting sentence.

Clause 403 would insert a replacement section 19 into the Bail Act. We also recommend inserting a new section 19(6), to create a strict liability offence for breaching publication restrictions on bail hearings. This offence would be punishable by a maximum $25,000 fine for individuals or a $50,000 fine for a body corporate.

Representative charges

We recommend amending clause 14 by inserting new subclauses (1B) and (3A), which would require a charge to indicate clearly if it is representative, and a representative charge to include additional information for the purpose of fully and fairly informing the defendant. This information would include particulars of the offences represented by the charge, and any minimum values, amounts, or qualities that the prosecution must establish in order for the charge to be proved. We also recommend that clause 14 be amended to require an alternative charge to be clearly identified as such.

Special pleas

We recommend amending clause 42(3) to provide that a person entering a special plea must provide the court with information about the conviction, acquittal, or pardon on which the plea was based.

We recommend that new subclause (2) be inserted into clause 43, to provide that the court is not required to dismiss a charge arising from the same facts as those for which a person has already been convicted if the court is satisfied that evidence of a more serious charge was not readily available at the time that the original charge was laid. This change would allow a person who has pleaded guilty to a lesser charge, for example assault, to be charged with murder or manslaughter on the basis of new evidence of the death of the victim if the victim later dies as the result of their injuries.

We recommend that clause 45 be deleted as our recommended changes to clause 43 cover the same ground as clause 45, with some modifications. The provisions we recommend inserting in clause 43 are more general than clause 45 in the bill as introduced, as they make no reference to offences resulting in a death and include no limitation based on the maximum sentence available for the initial charge. However, unlike clause 45, the recommended new provisions would require that evidence of the more serious charge was not readily available at the time of the original charge.

We also recommend that the term “factual circumstances” in clauses 43, 44, and 46 be deleted and replaced with the word “facts”, for the sake of precision and clarity.

Case management

We recommend inserting clause 32A into the bill to require not guilty pleas for category 4 offences to be entered in the High Court, and the transferring of these cases to the High Court immediately following the defendant’s first appearance in the District Court. This would allow a High Court Judge to consider a case before the case management process was initiated, and to order any departure from the process he or she believed to be appropriate.

Sentence indications

We recommend amending clause 61 to make it an offence for details of a request for a sentence indication or an indication to be knowingly published before sentencing or the dismissal of a charge. This offence would be punishable by a maximum of three months’ imprisonment for individuals or a $50,000 fine for a body corporate.

Protocol offences

We recommend that clause 68(1) be amended to extend the protocol and application process, which in the bill as introduced applies to category 3 offences only, to also cover category 2 offences. This would give the judiciary some discretion to transfer certain category 2 offences from the District Court to the High Court. Because some category 2 offences may involve complex commercial prosecutions, we believe it important that there be some provision for category 2 offences to be heard in the High Court if this is appropriate. The bill as introduced would require that these offences be heard in the District Court.

We recommend that clause 68(4) be inserted, to require the Chief High Court Judge and the Chief District Court Judge to publish the protocol and any changes to it in the New Zealand Gazette. This amendment would bring the protocol into line with notification procedures for other types of judicial guidance.

Summary Proceedings Amendment Act (No 2) 2008

We recommend inserting new clause 437B into part 9 of the bill, which would repeal sections 19 and 20 of the Summary Proceedings Amendment Act (No 2) 2008. Section 19 of the Act requires the Solicitor-General to conduct a review of the operation of Part 5 of the Act two years after the commencement of that Part. However this bill would abolish the formal step of committing a case to trial (which Part 5 governs), so we consider a review would serve no useful purpose.

Oral evidence orders

We recommend inserting replacement clause 92(1) into the bill to redefine the grounds for making an oral evidence order. This amendment would create grounds for making an oral evidence order if

• •it is necessary to take a witness’s oral evidence to determine a pre-trial application on any matter

• •a witness has not filed a requested formal statement and the anticipated evidence is relevant to the charge against the defendant

• •it is otherwise in the interests of justice to take the oral evidence of a witness.

In the bill as introduced oral evidence orders are restricted to witnesses for whom a formal statement has been filed or who have failed to provide a formal statement as requested. As the prosecution is not required to file all formal statements, this clause would potentially exclude some witnesses, and make determining pre-trial applications difficult since the court would need to make an oral evidence order to hear from a witness to determine a pre-trial application. We were also concerned that the “interests of justice” test in clause 92 as introduced was too narrow, and consider it should not be limited solely to witnesses for whom formal statements have been filed.

Appeals

Clause 236 is intended to consolidate and simplify current statutory provisions, particularly section 385 of the Crimes Act 1961, in relation to appeals against conviction, without changing the core principles underlying the courts’ current approach to these appeals. We recommend some amendments to clause 236 to ensure that this intent is clear.

We recommend that clause 236(2) be deleted as it implies that appeals against conviction from jury trials do not proceed by way of rehearing. This is not an accurate reflection of the law, as section 24 of the Supreme Court Act 2003 states that all appeals to that court are by way of rehearing.

We also recommend inserting new clause 236(5), which defines the term a “substantial miscarriage of justice” as any error or irregularity that creates a real risk that the outcome of the trial was affected, or results in an unfair trial or a trial that is a nullity.

We also recommend changes to the provisions governing second appeals to the High Court and the Court of Appeal. We recommend amending clause 227(3), and other second appeal provisions, to remove the requirement that a second appeal be on a question of law; and to provide that leave for a second appeal may be granted if the court considers the case to involve a matter of general or public importance, or a substantial miscarriage of justice may have occurred, or may occur if the appeal is not heard.

Repeal of reverse onus provisions

We recommend amending Schedule 6 of the bill as introduced in order to remove two reverse onus provisions. The Attorney-General concluded that these provisions, in section 113A of the Fisheries Act 1996 and section 53A(4A) of the Civil Aviation Act 1990, are unjustified. We agree with the Attorney-General’s assessment and recommend that these provisions be deleted from the bill.

Rules and regulations

We recommend adding clause 11B to specify that parties must conduct proceedings in accordance with the bill and any rules or regulations made under the bill.

We recommend amending clauses 382 (governing rules) and 383 (governing regulations) to ensure that the rule- and regulation-making powers in these clauses reflect clearly the intended scope of the rules and regulations.

Community Magistrates and Justices of the Peace

We recommend inserting new clause 358A to make it clear that Justices of the Peace and Community Magistrates may deal with matters outside of their sentencing and trial jurisdictions for the purposes of taking pleas.

We also recommend inserting new clause 358B in order to allow Community Magistrates and Justices of the Peace to make suppression orders on the following basis:

• •on first appearance, with this power limited to the making of interim or time-limited suppression orders

• •on subsequent appearances, by consent and also on a time-limited or interim basis only.

We also recommend that clause 354 be amended to extend the jurisdiction of Community Magistrates to cover any category 1 offence specified in regulations punishable by a fine of up to $40,000. We recommend further amending clause 354 to provide Community Magistrates with jurisdiction over all infringement offences. This would align the Community Magistrates’ jurisdiction with that of Justices of the Peace.

We recommend that clause 357(ab) be inserted to give Community Magistrates the power to make orders under section 4(3) of the Costs in Criminal Cases Act 1967. This power could be exercised when Community Magistrates were exercising their sentencing jurisdiction or their powers under the Land Transport Act 1998.

New Zealand Labour Party minority view