Majority recommends passage of criminal procedure bill

Parliament’s Justice and Electoral Committee has released its report on the Criminal Procedure (Reform and Modernisation) Bill and has recommended by a majority that it be passed with amendment.

The Labour Party members on the committee have released a minority report and oppose the bill’s passage, stating that the reforms in the bill “are not coherent” with other moves taken by the Government.

The amendments recommended by the majority address a number of issues raised during submissions on matters such as trial in a defendant’s absence, defence identification of issues in dispute, name suppression and sentencing factors.

The bill’s objective is to simplify and reform the framework governing criminal procedure. It 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. The bill proposes introduction of a formal case management process and new pre-trial procedural requirements.

The bill was referred to the committee on 24 November 2010. By the closing date of 18 February 2011, it had received 72 submissions. The committee heard 35 of these, including one from the New Zealand Law Society.

Some of the key amendments recommended by the committee are as follows:

Identification by defence of issues in dispute

An amendment to clause 64 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.

A new provision 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.

A new clause to make it clear that nothing in the bill would limit the conduct of the defendant’s case at trial.

Co-defendant failure to identify issues in dispute

A new clause to allow a defendant to comment to the fact finder about a co-defendant’s failure to identify the issues in dispute.

Proceeding in absence of defendant

A new clause to provide a clear statement that a 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 of issue a warrant for the defendant’s arrest.

Widening of the grounds on which a retrial can be ordered if a trial is conducted in the defendant’s absence. The committee says the grounds for a retrial should be the same regardless of the offence category concerned.

A new clause requiring the court to order a retrial of all category offences if satisfied that the defendant was not notified of the trial.

Name Suppression

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. The report says it believes 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.

Consequential amendment of other clauses is also recommended to omit references to identifying information and replace them with references to address or occupation.

The committee recommends changing the bill definition of “member of the media” by deleting the term “media reporter” and replacing it with “a person who is reporting on the proceedings”.

A proposed amendment would clarify that the fact that a defendant was well known would not of itself mean that publication of his or her name would result in extreme hardship for the purposes of the bill’s ground for name suppression. Interim suppression orders would also expire automatically without judicial intervention.

The provisions relating to suppression orders and the internet would be amended by inserting a new clause to ensure that internet content hosts were not liable unless they knew or were aware of a risk that 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 if more appropriate for internet content hosts to be liable under the general offence provision if they knowingly or recklessly publish suppressed information,” the report says.

Factors in sentencing

Redrafting of the clause which inserts a new section 9(2)(fa) into the Sentencing Act 2002. At present this recognises procedural compliance by the defendant as a mitigating factor in sentencing. The committee believes this should be redrafted to state that steps taken “other than steps to comply with procedural requirements” are to be considered mitigating. The intention is to ensure that the defendant’s compliance with procedural requirements is mitigating only if it goes beyond the statutory obligations.

Bail conditions

Creation of a strict liability offence for breaching publication restrictions on bail hearings, punishable by a maximum $25,000 fine for individuals or $50,000 for a body corporate.

Representative charges

An amendment to require a charge to indicate clearly if it is representative, and for a representative charge to include additional information for the purpose of fully and fairly informing the defendant.

Special pleas

An amendment to require a person entering a special plea to provide the court with information about the conviction, acquittal, or pardon on which the plea is based.

A new provision which means 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 already available at the time that the original charge was laid. This would allow a person who has pleaded guilty to a lesser charge, such as 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.

Sentence indications

A new provision making 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.

Oral evidence orders

Redefinition of the grounds for making an oral evidence order. The committee feels that the current provision would potentially exclude some witnesses, and make determining pre-trial applications difficult.

Repeal of reverse onus provisions

The committee says it agrees with the Attorney-General that two reverse onus provisions in Schedule 6 of the bill – s113A of the Fisheries Act 1996 and section 53A(4A) of the Civil Aviation Act 1990 – are unjustified. The report recommends their deletion from the bill.

Regulations adding or removing offences from Schedule 1

The committee says it considered concerns from the Regulations Review Committee about powers in clause 383(1)(g) of the bill. This would allow offences to be added or removed from Schedule 1 of the bill through regulations. The offences in Schedule 1 are category 4 offences, which are the most serious offences on the statute books and must be tried in the High Court by a jury, unless a judge-alone trial is ordered or a juror has been intimidated.

The committee says the clause should be retained, as it would allow offences in the schedule to be amended efficiently and more quickly than statutory amendment.