A Government proposal for a new infringement offence for shoplifting would mean the burden of proof would fall on the suspect to prove their innocence.
This would create a tension with the right to be presumed innocent until proven guilty, protected in the NZ Bill of Rights Act, but Justice Minister Paul Goldsmith said it strikes the right “balance” between public safety and an individual’s rights.
His just-released Cabinet paper, on a raft of changes to the Crimes Act, also reveals the evidence threshold for assaulting a first responder with intent to injure doesn’t have to include any actual injury.
The paper relates to a series of recent announcements from Goldsmith, which would introduce new offences and strengthen some existing ones. These relate to “coward punches”, attacks on first responders and low-level shoplifting.
The National Party committed to all of these in its coalition agreement with NZ First.
A bill to enable these changes is yet to be introduced.
The proposals include a new strict liability offence for shoplifting, with a $500 infringement fee, doubling to $1000 if the value of the stolen goods is more than $500.
It would be proven simply by evidence the person left the store with the goods (such as CCTV footage), but with a “reasonable excuse” defence to mitigate against catching people “who genuinely make a mistake”, according to Goldsmith’s paper.
A strict liability offence means there’s no requirement to prove a guilty mind, so the offence “removes the requirement to prove intent, and introduces reverse onus (the burden of proof is shifted to the defendant) for the ‘reasonable excuse’ defence”.
This “engages” the section of the NZ Bill of Rights Act about the right to be presumed innocent until proven guilty.
“I am satisfied that my recommended proposals have been tailored to appropriately balance individual rights and freedoms with the important public safety interests and objectives sought by the Government,” Goldsmith said in his paper.
It noted concerns from the Privacy Commissioner over how an infringement offence based on “inaccurate personal information” can be challenged.
“It is not clear to the commissioner what information individuals who are issued notices based on inaccurate information will be able to provide to challenge the notice or prove the defence,” the paper said.
Police also raised concerns, including “practical implementation implications”, “evidentiary challenges” and the “increased demand for a police response”.
Goldsmith’s paper acknowledged disproportionate impacts for certain groups, including Māori, who currently make up more than half of all theft proceedings.
“A strict liability offence [also] increases the risk that misinterpreting the behaviour of deaf people or people with an intellectual or neuro-disability could result in disproportionate impacts on this group,” he said in his paper.
The proposals for coward punches and assaults on first responders could also have a similarly disproportionate effect on those with an intellectual or neuro-disability, the paper said.
The new shoplifting offence would complement the existing offence of theft, which would also be simplified:
Goldsmith also raised the impact on children and young people, who are inherently more vulnerable, “although existing youth justice principles and measures such as warnings and alternative actions will continue to apply”.
The move follows a police memo this year about not investigating retail crimes below a certain threshold.
Police Commissioner Richard Chambers later called the memo confusing and unhelpful, and reminded all district commanders they should continue to catch offenders where possible, regardless of the memo’s thresholds.
Oranga Tamariki objected to the “coward punch” proposals being equally applicable to children as to adults.
The “coward punch” assault offence would be for one-punch attacks causing grievous bodily harm, with a culpable homicide offence (with potential for life imprisonment) for a one-punch attack resulting in death.
“Oranga Tamariki does not support applying the new one-punch attack offences to children and young people,” the Cabinet paper said.
“It considers the harsher penalties for one-punch attacks excessive and inconsistent with the principles of youth justice and international obligations.
“Further, it considers that applying the proposed infringement offence to children the same way as to adults would be inconsistent with international law, NZ Bill of Rights Act, and the Oranga Tamariki Act 1989, and would have a disproportionate impact on children and young people.”
The proposals to strengthen protections for first responders include:
Goldsmith said the suite of changes could be a drag on court timeliness, given the risk they could increase the number of jury trials (available for any offence that could see an offender behind bars for two years).
While he has previously talked about the importance of improving court timeliness, this is outweighed in this case by the need to “address the increasing problem with assaults on first responders and prison officers by providing broad coverage and workable offences, ultimately ensuring that there are real consequences for this type of offending”.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.