Lifting celebrity name secrecy part of law shake-up

The proposed changes to the justice system are far-reaching. Photo / Thinkstock

The Government's proposed shake-up of the criminal justice system has split opinion among judges, lawyers and law-makers throughout the country. The Criminal Procedure (Reform and Modernisation) Bill is due to be reported back to Parliament this week.

You are facing serious criminal charges and years in prison, and claim innocence. Before your trial starts, you must tell the prosecution of "any particular elements of the offence" that are in dispute.

Failure to do this adequately means the judge can think you are more likely to be guilty, or could instruct a jury to think the same.

This is one of the most controversial aspects in the Criminal Procedure (Reform and Modernisation) Bill that the Government wants passed into law before the election.

The pre-trial regime would be a fundamental shift in the legal principles that a defendant is innocent until proven guilty - not in relation to a charge, but to undisputed elements - and that the burden of proof beyond reasonable doubt falls squarely on the prosecution.

The bill would make a number of other major changes, such as changing the threshold for electing jury trials, which would require a change to the Bill of Rights Act. With a few exceptions, you can currently choose a trial-by-jury if the charge you face has a maximum penalty of at least three months' jail.

The bill would push the threshold to three years' jail, meaning a number of offences would have to be heard by a judge alone: theft of between $500 and $1000, possession of a class A drug, common assault, some electoral offences, assault on a female or child.

If passed, it would mean a child smacking case could not be heard by a jury.

The bill would also ensure celebrities are not granted name suppression just because they are famous, and broaden the circumstances when trials can continue in the absence of the accused.

But in the biggest shake-up to the criminal justice system in New Zealand's modern history, the pre-trial requirements have caused the biggest stir. It has split opinion in the judiciary and the legal fraternity, leading to written submissions from all corners, including Chief Justice Dame Sian Elias.

Would it erode the long-standing legal principle of the right to silence and against self-incrimination, or speed up trials without compromising justice? At the moment a defendant can keep quiet and leave the prosecution to prove every aspect of the case - even the ones that appear clear- cut.

The pre-trial measure is meant to discourage, for example, a man charged with rape from claiming that he wasn't there, but if proven that he was, then they did not have sex, but if proven that they did, then that it was consensual.

Under these circumstances, the judge or jury should be allowed to see the tactic as damaging to the accused's credibility - though it would not be enough on its own for conviction.

There are safeguards: failure to notify may be excused by a reasonable explanation, and the defendant has a right to be heard. Any inference taken by the judge or jury must also be appropriate to what was withheld.

How these measures would play out in a courtroom, of course, remains to be seen.

Dame Sian criticised the regime as "contrary to longstanding principle, being inconsistent with the accused's right not to volunteer information that might help the prosecution".

"I appreciate that some defendants and counsel are guilty of abusing the system but, on balance, the judiciary is not persuaded that this provides good reason for the departure from basic principle, which is involved in any requirement for advance disclosure of an intended defence."

Dame Sian's joint submission with Court of Appeal Justice Mark O'Regan and Chief High Court Judge Helen Winkelmann, representing the "view of the judiciary", also said sanctions would be "impracticable to apply" because failing to follow procedure could be the lawyer's - not the accused's - fault.

This point was reiterated by Chief District Court Judge Russell Johnson, whose courts process the lion's share of criminal trials. "It is manifestly unfair that a defendant's case might be substantively compromised because of an omission by their counsel."

The ability to take a negative view of the accused for failing to comply would "create significant complications for judges when summing up or directing juries".

"Judges will be very reluctant to make determinations of this nature," implying that the court might ignore this provision."

But Judge Johnson had no issue in principle with the regime - "it makes sense for the efficiency of the trial, and it's not unjust" - putting him firmly at odds with his judicial superiors.

The Ministry of Justice estimates that the regime would cut about 10 per cent off the court time for all judge and jury trials, which translates to tens of millions of dollars, though sceptics predict it will simply lead to more appeals.

Defence lawyers are equally at loggerheads with Crown prosecutors over the regime.

"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'," Crown prosecutor Brent Stanaway told the select committee in March. He even argued that the bill does not go far enough, as undisputed issues should have the status of "admitted facts".

"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."

The bill will be reported back from select committee this week and, despite pleas from Dame Sian and others for more time, it should be passed into law before the election in November.

CONTROVERSIAL

* Requiring the defence to give notice of all elements of a case that are in dispute before a trial.
* Changing the threshold for the accused 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 because they are famous.
* Widens the circumstances under which a trial can continue in the absence of the accused.

IN DISPUTE

On the need to disclose all issues:

* Chief District Court Judge Russell Johnson: "It makes sense for the efficiency of the trial, and it's not unjust."
* Chief Justice Dame Sian Elias: "The requirement would be contrary to longstanding principle, being inconsistent with the defendant's right to have the prosecution prove its case beyond reasonable doubt, not being obliged to assist the prosecution by volunteering information."