NZLS welcomes 'P' trials in District Courts

THE NZLS favours District Courts being able to deal with the methamphetamine trials currently causing major hold-ups in the High Court, as provided in the Criminal Procedure Bill.

Additions to the bill following consideration by Parliament’s Law and Order Committee have answered many NZLS reservations about changing the depositions process.

This bill recently moved back into contention, having earlier looked unlikely to attract the numbers needed to pass its third reading. After earlier declining its support, the National Party now says it will back the bill, giving the government the numbers it requires to progress the proposed legislation.

In 2005, the National Party quoted the NZLS case in outlining its position. "The arguments made by the legal profession in support of maintaining preliminary hearings were convincing," the National Party minority view contained in the Law and Order Committee report on the bill said.

"National is concerned that abolition of oral preliminary hearings will deny defendants the opportunity to hear directly the evidence against them, so assisting their defence or acceptance of guilt."

Now, however, Courts Minister Rick Barker says he is "looking forward to the bill moving through the final stages as quickly as possible" following the National Party’s decision to support the proposed legislation.

"The government has acknowledged National’s concerns around the changes to the depositions process proposed by the bill and as an act of good faith has agreed to a review of the effectiveness of these measures two years from the date of commencement. This was a reasonable suggestion and we appreciate the National Party’s willingness to negotiate a solution that will allow the bill to move forward," Rick Barker said in a 5 June media release while he was acting Minister of Justice.

"By shifting the default position and allowing depositions to be based on written evidence, we can significantly reduce the pressures on victims who have to give evidence, free up court time, and make better use of police and judicial resources.

"Under the current system, victims appear twice to give evidence, once during the oral preliminary hearing and then again during the trial. It is clear victims want their day in court, but it is important that we do not drag them through a painful and sometimes traumatic process twice, unless it is absolutely essential.

"Provisions in the bill will tighten and improve the rules around the pre-trial disclosure of evidence by enshrining in law the concept of full disclosure. This will ensure that a defendant has full opportunity to consider the case against them prior to their trial," Rick Barker says.

"Justice Minister Annette King will shortly introduce a Supplementary Order Paper amending the section of the bill dealing with depositions, to allow oral submissions to be made to support an application for an oral depositions hearing and incorporating the two-year review," Rick Barker says. The two-year review would be led by the Solicitor-General.

Provision of a Police disclosure regime and the review after two years were both welcome, the NZLS Criminal Law Committee convener, Jonathan Krebs says.

Over time, the original purpose of oral depositions to consider whether there was a prima facie case had developed to serve other purposes useful to the administration of justice.

First among those was that the oral hearing provided a point in time when full prosecution disclosure was required. A provision enshrining in law full prosecution disclosure would meet one concern the committee expressed in August 2004, following detailed consideration of the bill.

The committee’s 2004 submission on the proposed abolition of depositions was reconsidered recently in light of the suggested changes.

The committee had difficulty reaching a unanimous position on the topic "no doubt due to the diverse backgrounds
of its members," Jonathan Krebs said.

Nevertheless, a position was reached, and the committee wrote to the Law Commission suggesting a system with an ‘opt out’ provision.

The committee’s preferred position was to retain the status quo. If, for a number of very powerful reasons, the status quo was not favoured, the committee considered that the fast track should be an ‘opt out’ procedure with the default position being an oral committal hearing.

"It is the committee’s view that the profession would approach such a position responsibly," it said in a letter to the Law Commission

"The statistics suggest that as many as 40% of committals occur without oral evidence and with the concession of a prima facie case. With the suggested ‘opt out’ regime, the committee believes that the statistics would be similar, with a significant saving to the court of both cost and time.

"If that position is not acceptable, then the committee recognises the benefit of the change proposed by the amendment to the bill in which the opportunity is included for a defendant to apply for an oral committal hearing on an ‘interests of justice’ basis.

"That phrase, providing it is intended to and ultimately is interpreted to include the circumstances underlying the committee’s concerns … would go a considerable distance to meet (the committee’s) concerns," the letter said.

The proposed system would, while reducing justice of the peace time on committal hearings, increase the amount of judge time required to consider applications for hearings, while the ‘opt out’ provision would, in most circumstances, require no judicial time at all, the committee said.

The committee’s letter listed other benefits to the administration of justice that oral hearings provided, including the fact that some defendants changed their plea to guilty on hearing the evidence, that the Police (sometimes significantly) amended the charges following committal and that oral depositions allowed counsel to establish an evidential foundation for pre-trial challenges to evidence or to mount s347 applications.

The committee had not been asked to provide any new input into the double jeopardy provisions of the bill, Jonathan Krebs said.

One of the widely publicised features of the bill is that, if enacted, it would allow some trials of people charged with methamphetamine (or "P") offences to be dealt with in district courts.

The NZLS welcomed that provision, NZLS president John Marshall said.

"We have been concerned for some time at the pressure placed on the High Court, especially in Auckland, as a result of the large number of methamphetamine trials awaiting hearing.

"This has resulted in unacceptable delays, both in criminal and civil trials. Obviously, there is concern that the burden will not simply be shifted to the District Court, but no doubt Government is sensitive to that consequence and will be making arrangements for the increased workload of the District Court to be provided for," John Marshall said.