Right to jury trial could be decided by courts

Photo / Thinsktock

People accused of child-smacking or domestic violence crimes could keep the right to have their cases heard by a jury, under an eleventh hour proposal to make the Government's criminal justice reforms more palatable.

Justice Minister Simon Power continues to talk to parties about the Criminal Procedure (Reform and Modernisation), which needs four votes other than National's to pass.

Negotiations have mainly focused on the provisions around an accused's right to silence, but the bill would also substantially narrow the criminal cases that could be heard by a jury.

Currently defendants can choose a trial by jury if they are facing a charge with a maximum penalty of more than three months' jail; the bill proposes pushing the threshold to three years, which would see a change to the Bill of Rights Act.

It would mean offences including theft of between $500 and $1000, possession of a class A drug, common assault, and assault on a female or child could only be heard by a judge.

Mr Power's proposed changes soften the bill by enabling the court to allow jury trials for such charges in "exceptional circumstances", or ones considered to be complex or sensitive. The defendant would have to satisfy the court of such circumstances.

It would effectively mean that all cases could be heard by a jury, except where the offence does not carry a potential jail term.

Mr Power's amendment also waters down the ability of a court trial to proceed in the absence of the defendant - another clause that Labour, the Greens and the Maori parties find objectionable.

The bill as it stands states that the court "must" proceed if the accused is absent and does not have a reasonable excuse; the amendment would change the word "must" to "may".

Mr Power also suggested removing the provision around the right to silence and leaving it in the hands of the Rules Committee, a panel of legal experts.

The amendment would enable the defendant to remain silent without that being held against them at trial - even if the Rules Committee made it mandatory to notify issues in dispute before a trial.

But non-compliance could be an aggravating factor at sentencing, if found guilty.

However, there are only seven sitting days left this parliamentary term, and Mr Power is now seriously considering abandoning the controversial provision altogether.

Mr Power would not comment on details of the negotiations.

Labour's Justice spokesman Charles Chauvel said the bill was too important to be rushed through with a one-vote majority.

"If that is the attempt that's made, Labour would have to consider debating the bill extensively, and the Government would then have to decide if that's how it wants the last two weeks of Parliament to be spent."

In the dock

* Currently defendants can choose a jury trial for offences that carry a penalty of more than three months.
* The bill would push the threshold to three years, meaning most cases would be heard by a judge.
* Justice Minister Simon Power is proposing that the court decide to allow jury trials in "exceptional circumstances" for any case that potentially carries a jail term.