KEY POINTS:
Criminal cases will be fast-tracked after National yesterday agreed to support the Criminal Procedure Bill, which streamlines the depositions process. But the reforms _ to be reviewed in two years _ remain controversial, with defence lawyers arguing that depositions hearings are fundamental to preventing miscarriages of justice. Associate
Justice Minister Rick Barker outlines the case for change; barrister Anthony Rogers pleads for retaining "one of the pillars of the criminal justice system".
FOR: FORRICK BARKER
The deposition process plays an important part in the New Zealand legal system. It is about ensuring that the prosecution has enough evidence for a reasonable jury to convict, if all the evidence were to be believed. It also ensures that the defendant has access to all the prosecution's evidence as they build their defence.
This open process is fair and I don't believe New Zealanders would accept trial by ambush, or matters going to trial needlessly. Currently the rules around pre-trial disclosure are not as strong, or clear, as they should be and the process varies around the country.
The Criminal Procedure Bill, which is currently before the House, seeks to improve the rules governing pre-trial disclosure and enshrine in law the concept of full disclosure. This would mean that all the evidence must be on the table and available to the defence before the trial starts.
Once these changes are made, it is the Law Commission's opinion that there is no longer the need for oral deposition hearings in all cases. This bill changes the default so that judges can carry out depositions based on written evidence rather than oral evidence, unless they deem that it is in the `interests of justice' to hear certain evidence orally.
There would be three major benefits from such a change.
First, victims would not always be required to give evidence twice. Currently when depositions occur orally, victims must appear before the court to give their evidence, once during the pre-trial deposition process and then again during the trial. Victims want their day in court, but it is important we do not drag them through a painful, sometimes traumatic process twice, unless absolutely essential.
This can take a huge emotional toll on victims and witnesses and it is clear from recent media reports that there is growing public concern about how stressful the oral depositions process can be.
The second beneficiary is the courts themselves. Our courts are under pressure from increasing workloads and ever improving police disposal rates, which are seeing more and more people brought to justice.
Thousands of hours a year are given over to hearing oral depositions. Even a small reduction in this would have flow-on effects for court staff and users, police and expert witnesses. We have made a significant investment in our courts and made timely access to justice for all New Zealanders a priority. We now need to go a step further.
By changing the default position and allowing depositions to be based on written evidence, we would be taking that step. It does not benefit anyone to have cases taking too long in the courts and this is rightly a concern for all involved in the justice sector. Those who complain about this very issue and at the same time oppose the solutions presented by the bill, are simply not credible.
The third benefit from the proposed changes to depositions will be for defendants. Victims want to have their case heard in a timely manner so they are able to get on with their lives, and this is also true for a majority of defendants.
I think the bill strikes the appropriate balance between the right of all parties to a fair trial, the need to ensure all cases are heard as soon as possible, and the absolute commitment by this government to ensure that victims are not needlessly subjected to any more stress or pain than they are already under.
Some commentators have said that the purpose of depositions is to expose or examine deficiencies in the prosecution case, possibly preventing miscarriages of justice.
The purpose of depositions is to establish if there is a case to answer if all evidence is to be believed. It is up to the trial itself to establish the veracity of that evidence and to determine the guilt or innocence of the defendant. The appeal process exists to safeguard against any miscarriages of justice, not the depositions process alone. The Criminal Procedure Bill will not diminish the trial process. It will continue to be as robust as all New Zealanders would expect.
In addition, section 347, which will continue to be available to the defence at any time, gives the court a broad discretion to discharge the accused on the basis that there is insufficient evidence to justify a trial.
I would also like to reiterate the critical point here that the bill does not completely do away with oral depositions. It simply seeks to change the default. A judge would still be able to order that evidence be heard orally during the deposition process if they see it as being in the "interests of justice".
It has become clear, that to ensure timely access to justice for all New Zealanders, some underlying changes to criminal procedures need to be made.
The bill is based on Law Commission recommendations and has wide ranging support from across the justice sector. It will make significant improvements for victims without compromising the defendant's right to a fair trial.
- Rick Barker is Courts Minister and Associate Justice Minister
AGAINST: ANTHONY ROGERS
The value of oral evidence is obvious.
The Criminal Procedure Bill before Parliament has been stalled since last year because the majority of MPs oppose "Part 5 Committal proceedings for indictable offences" and the Government has been unwilling to let that part go.
Part 5 would severely restrict and effectively eliminate depositions or preliminary hearings under the Summary Proceedings Act 1957. Depositions hearings are one of the pillars of our criminal justice system. They come into play only in cases where there is to be a jury trial and which therefore involve the possibility of those being found guilty being sentenced to imprisonment.
Their official and primary purpose is to see if there is sufficient evidence to put someone on a trial where there is to be a jury trial. There are, however, important secondary purposes. They have a critical role in preventing miscarriages of justice.
Where a person is to face trial by jury for an imprisonable crime, the prosecution must serve written statements (briefs of evidence) which, in theory at least, contain the evidence to be given by prosecution witnesses at the trial.
If the defendant's lawyer accepts there is sufficient evidence, the defendant can be committed for trial without further ado. The defendant can, however, demand a preliminary or depositions hearing to test whether there is legally sufficient evidence to put a person on trial.
It is normal, although not required, for briefs of evidence of some witnesses to be accepted by the defence without the witnesses attending the hearing, while the defence can require other witnesses to give evidence in person. The value of being able to require a witness to give oral evidence is obvious. A lying witness with a grudge against the defendant may be willing to make a written statement to the police but ultimately unwilling to give perjured evidence in court. If the prosecution case depends on that witness, the defendant will be discharged without having to face trial.
Detractors of depositions hearings may argue that all that can happen at a trial without the cost of two hearings. The argument ignores the tremendous human cost of trials even if the defendant is ultimately acquitted.
The defendant has, in spite of acquittal, had their name dragged through the mud. Although found not guilty, the person's family and work life can be upset for a long time, not to mention the emotional trauma of facing trial.
The standard committal procedure under the bill for indictable or jury trial offences will be hand-up briefs of evidence unless either party applies for an oral evidence order. Such applications will be granted only in limited circumstances. Our objection is that, in part, it assumes that since the obligations of the prosecution to disclose records of interview with prosecution witnesses have increased in recent years and because the process of disclosure will be further regulated by the bill, the need for depositions hearings is less.
The fallacy is the assumption that statements taken by the police or other prosecuting agencies provide an accurate indication of what those witnesses will say in court. Time and time again we find that witnesses have far more to say of real significance at depositions hearings than is recorded in their police statements.
Depositions hearings act as an essential check against non-disclosure of important information. Non-disclosure can occur because investigators such as police officers are overworked and lack the time to conduct thorough investigations or are negligent or (what is hoped is the case only in the minority of cases) deliberately conceal relevant information.
It is common for the existence of items such as diaries, documents in general, and even tape and video recordings and the existence of possible witnesses to be made known to the defence only through cross-examining prosecution witnesses at depositions hearings.
Why does the bill propose to restrict and effectively eliminate depositions hearings? The real answer is the supposed cost of depositions and the erroneous assumption that restricting hearings will reduce cost.
This assumption reflects a misunderstanding. Depositions are sometimes used by the prosecution, for example, to test witnesses to see what they will say in court and whether to call them at trial. If that cannot be done in depositions hearings, then longer trials may ensue. That will involve more judge time and more jury time.
Depositions hearings are used by defence counsel to test the factual basis of possible legal arguments as to the admissibility of evidence.
They're also used by defence counsel to explore factual issues that could arise at trial. Often in view of the evidence given at depositions hearings, counsel do not pursue the point at trial. If this practice cannot continue the issues will then have to be explored at trial, involving more judge and jury time.
It is my prediction that to restrict depositions hearings in the manner proposed will lead to significant increases in the length of jury trials at much greater financial cost and greater disruption to the lives of ordinary citizens who are called upon to do jury service.
The Arthur Allan Thomas, Edwin Brown and David Bain cases and some English cases, such as the Birmingham Six emphasise the value of depositions hearings as a check against miscarriages of justice.
- Barrister Anthony Rogers is a member of the Criminal Bar Association
