Herald on Sunday editorial: Justice bill is two steps too far

Justice Minister Simon Power. Photo / Sarah Ivey

Justice Minister Simon Power will have his work cut out to get his criminal justice reform passed into law before Parliament rises for the election.

The Criminal Procedure (Reform and Modernisation) Bill is stuck in the legislative mire because neither Act nor the Maori Party will support it as it stands.

Power, who is retiring from politics at the election, will be understandably keen to have the matter completed before he cleans out his office. So perhaps he will see the wisdom of compromising some of the bill's more egregious elements.

What could reasonably have been entitled the Criminal Procedure (Speed Up and Save Money) Bill will please those who feel that clogged courts bend over backwards to protect the rights of the accused. And the legislation does propose efficiencies which even the bill's critics don't object to. "Virtual" appearances would bring a defendant remanded in custody to court by video link rather than in person for brief, routine procedures. The potential for savings is obvious.

A provision that would allow courts to proceed with a case in the absence of a defendant if there is no reasonable excuse for absence; and another allowing a trial to continue with a trial when jury numbers fall to 10 seem equally unobjectionable. And few people would oppose making it harder for accused people to be granted name suppression purely on the grounds that they are famous.

More problematic is the idea that the right to elect a jury trial should be restricted to those facing charges carrying a maximum sentence of three years - the current threshold is three months. In practice this means dishonesty offences involving between $500 and $1000 and possession of (not dealing in) a class A drug and could save 100 jury trials a year.

But the real sticking point is the provision that would require the defence to identify and disclose the issues in dispute - which is to say, provide an outline of their defence - before a trial.

This has been characterised in political discussion as removing the defendant's right to silence, which is - perhaps intentionally - misleading. Such a phrase instantly takes us back to the sordid spectacle of the Kahui twins' murders, in which interlocking conspiracies of silence frustrated the attempts to bring someone to justice for the killing of the tiny babies.

A defendant would still be entitled to refuse to take the stand and a judge would have to tell the jury that no inference can be drawn from that refusal. But defence counsel would have to disclose their grounds of defence to the prosecution in advance of a trial, and if they fail to do so, a jury could draw inferences from that failure.

Unsurprisingly the three most senior members of the judiciary, the Chief Justice, the president of the Court of Appeal and the Chief High Court Judge, have expressed grave concerns at the provisions. They are "contrary to longstanding principle [and] inconsistent with a defendant's right" not to volunteer information that might help the prosecution. We should share those concerns.

Cases like the Kahui one make people boil with righteous rage, but righteous rage is not a good basis for a criminal justice system. And we should ask ourselves how we would feel if, unjustly accused, we were required to do the prosecution's homework.

Simon Power's intentions are good, but the fact that two parties from opposite sides of the political spectrum oppose him should give him pause. The bill can and should go forward before the election, but those provisions need to be removed.