Judges split over pre-trial changes

Many aspects of sweeping reforms to criminal justice are impractical and wrong in principle and judges will be "very reluctant" to comply, Parliament has been told.

The Criminal Procedure Bill - before the justice and electoral select committee - has split the legal fraternity, as well as the judiciary.

Some are becoming increasingly vocal in opposition to what is the biggest shake-up of the sector in decades.

At the heart of debate is a pre-trial regime that would require defence lawyers to disclose matters in dispute before the trial. Failure to do so could lead to sanctions, and to a judge or jury taking an adverse view of the accused.

Chief District Court Judge Russell Johnson said the ability to take an adverse view would "create significant complications for judges when summing up or directing juries".

"Judges will be very reluctant to make determinations of this nature," he said in a written submission, representing all district court judges.

"Judges will be even more reluctant to impose an adverse inference on self-represented defendants," which would likely create an arbitrary double-standard when dealing with defendants with lawyers, as opposed to those representing themselves.

He also argued it was "conceptually incoherent, and therefore arbitrary" to draw an inference as to one's guilt based on a failure to follow procedure.

"It is manifestly unfair, as a matter of principle, that a defendant's case might be substantively compromised because of an omission by their counsel."

But Judge Johnson told the committee he supported cost-orders for non-compliance, and the regime that would require the defence to disclose matters in dispute.

"It makes sense for the efficiency of the trial, and it's not unjust," he said.

This is in contrast to the view of Chief Justice Dame Sian Elias, who criticised the pre-trial regime as contrary to the defendants' right not to volunteer information that may help the case against them.

Defence lawyers are equally at odds with Crown prosecutors over the regime, the former arguing it would potentially amount to self-incrimination, the latter saying it would speed up the trial process without compromising justice.

"Disclosing issues in dispute really undermines the evidence process we have," NZ Bar Association past president Colin Carruthers, QC, said last week.

When asked if the changes could lead to a greater chance of innocent people being convicted, Mr Carruthers said: "That is a concern."

But Crown prosecutor Brent Stanaway said the regime posed no risk to the innocent.

"Why should the country be put through the expense of proving a whole series of circumstantial and potentially irrelevant matters, simply because the accused sits on his laurels and says, 'You prove it'.

"I don't accept that there is necessarily any injustice in the accused being required to focus the fact-finder's mind on what really is at stake."

Judge Johnson also supported lifting the threshold for electing a trial by jury to three years. Defendants can currently choose a jury trial if the charge against them carries a maximum penalty of at least three months' jail.

Judge Johnson said five years would be an even better threshold as it would ensure minor matters would go before a judge alone.

THE REFORMS
* Among other things, failure of the defence lawyers to disclose issues in dispute to the prosecution before a trial would mean a judge or jury could make an adverse view of the accused.
* District Court judges say this would create significant complications in summing up cases, and judges would be very reluctant to comply.
* It is also wrong, in principle, to have substantive penalties for failing to follow correct procedure.