Plans softer but lawyers still irked

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The watering-down of proposals that will fundamentally change the way criminal trials work in New Zealand is being welcomed by the Law Society.

But concerns remain over provisions in the Criminal Procedure (Reform and Modernisation) Bill, in particular eroding the right to silence and narrowing the scope of offences that can go before a jury.

The justice and electoral committee report on the bill, released yesterday, retained the provision to push the threshold for electing a trial by jury from offences punishable by up to three months' jail to three years' jail.

The legislation would also establish a pre-trial regime requiring the defence to disclose issues in dispute, with the judge or jury able to make an adverse inference if this is not done adequately.

Parts of these provisions have provoked strong opposition from judges - including Chief Justice Sian Elias - and lawyers, although Crown solicitors support the pre-trial regime as they say it would speed up trials without compromising justice.

The MPs' panel has clarified that disclosing issues in dispute would not require the defence to "disclose its factual case", or name witnesses or evidence it intends to use.

Yesterday, the Law Society welcomed these changes. "But we are still very concerned about the ability to make adverse inferences," said Jonathan Krebs, convener of the society's criminal law subcommittee.

The society favoured the current jury-trial threshold and the adversarial system where the burden of proof rested solely with the Crown. "This bill, if passed, will usher in huge changes to the way in which criminal charges are dealt with, in particular the [change to the threshold] for jury trials," Mr Krebs said.

The committee's other changes include:

* Internet providers would not be liable for breaches of name suppression; instead the focus would be on who posts the breach on the internet, rather than who hosts it.

* Trials would be able to proceed in the absence of the accused, but with wider rights to a retrial if there was a reasonable excuse for the absence.

The bill would make name suppression harder to get, including for celebrities, who would not be able to rely on their fame.

Justice Minister Simon Power said the committee's recommendations would be adopted and the bill should be passed before the election.

The Government expects the reforms proposed in the bill to result in 43,000 fewer court events, between 1000 and 1400 fewer cases being designated for jury trial, and between 300 and 600 cases going before a jury each year.

Labour's report on the bill said that while it contained a number of worthy reforms, "it leaves the overall system in need of further significant reform, and erodes important liberties in the process without advancing a sufficient case for doing so".

CRIMINAL JUSTICE SYSTEM SHAKE-UP

* Requiring the defence to give notice of all disputed aspects of a case before a trial, though this would not mean naming witnesses or giving details of intended evidence.

* Changing the threshold for a defendant to be able to choose a jury trial from a charge punishable by up to three months' jail to three years' jail.

* Making name suppression harder to get, including celebrities who would not be granted it just for their fame.

* Widening the circumstances under which a trial can continue in the absence of the accused, with a right for a retrial if there is a reasonable excuse.