Hon Christopher Finlayson

CHRISTOPHER FINLAYSON (National) : I too am pleased that we have reached the third reading stage of these various bills, because I have found from speaking to various members of the legal profession that for some time they have been very concerned about the slow state of litigation, particularly in the High Court in Auckland, and that is primarily because of the number of methamphetamine trials.

So the fact that we have reached a happy conclusion is a good thing. I am delighted that the various parties in this House worked together to reach a resolution, and I endorse what the Minister of Justice said: one of the safeguards will be a review of the deposition changes in a couple of years’ time. That is all good. It is an illustration of what happens when we have cooperation across the House.

It is interesting that just this morning, and Mr Tanczos will recall this, the Minister of Justice came before the Justice and Electoral Committee to talk about the estimates. She gave us quite a touching homily on the desirability of bipartisanship, or multi-partisanship, in certain justice areas. I agree that that is a very desirable aim. This matter was able to be progressed because the Government, after some months, condescended to speak to the National Party—and I acknowledge the activity of the Minister for Courts, Mr Barker, in that regard. All I say is it is a shame the Government did not bother to talk to us in a constructive way prior to a couple of weeks ago.

I contrast that touching plea for multi-partisanship with the approach of this Government to other legislation—for example, the odious Electoral Finance Act. I refer, in passing, to what parliamentary counsel said during the select committee process on that bill. He said that if we want legislation in that kind of area that is enduring, we have to have a multiparty accord. He said that that was what had happened in 1993, when the Hon David Caygill and the Hon Murray McCully worked together on legislation. For his efforts, he was essentially told by the member for Wellington Central to go and see a taxidermist. She simply said that it is our kaupapa and he should stay out of it. Now, of course, the Labour members are reaping the reward for their spiteful partisanship.

I come back to the legislation. These bills address a number of major issues, and the first one I want to touch on is the reform of juries. As Dr Worth said in his speech, a number of major changes are introduced in relation to majority verdicts. I am not going to repeat the comments he made, because I thought he summarised very well indeed the proposed changes set out in sections 29C and 29D in clause 82 of the original Criminal Procedure Bill.

There is one change that I have to say I am a little disappointed in, and I want to elaborate on it at length. Clause 70 of the Criminal Procedure Bill set out some amendments to section 8 of the Juries Act. Section 8 says that certain persons may not serve on any jury in any court on any occasion—members of the Executive Council, members of the House of Representatives, judges, and various other people. The only change made to the question of who can serve on a jury is the addition of the Governor-General to the list of those who may not. But I think the time has come for a realistic review of jury service. I happen to agree with the attitude to jury service that is expressed in the United States, where juries are revered: a jury is one of the hallmarks of a well-functioning democracy. As one person has said, a citizen cannot be imprisoned or have his or her liberty taken away simply by the act of an official, such as a judge, and that is why juries are put on such a pedestal. I think perhaps the Americans go too far in putting juries on a pedestal, but juries do play a major role in the criminal justice system and, to a lesser extent, in the civil justice system.

I am a little disappointed that we did not have a good look at section 8 of the Juries Act 1981, bearing in mind the Auld review of the criminal courts of England and Wales, which occurred in 2001. Sir Robin Auld came up with a number of proposals for the removal of all categories of ineligibility based on occupation. He had a reservation about judges but decided that judges should not, ipso facto, be excused from sitting on juries. That is certainly the case in the United States, where even someone as eminent as Justice Breyer of the United States Supreme Court had to take part in jury service. One New York columnist described it as a foolish experiment in injudicious pseudo-egalitarianism. In England the proposed changes have come through, and judges do indeed serve on juries. A great effort has been made to clamp down on the so-called middle class opt-out from jury service. Judges, lawyers, the police, and others connected with the justice system have just as much of a duty to the State to take part in a jury as anyone else.

I believe that in this country, too, large numbers of the middle class opt out and get away with opting out. The absence of professionals from the bench has fuelled an unfair caricature of juries as being over-peopled with the feckless, the grudge-bearing, and the unemployed, as one anti-jury commentator put it. I think everyone has a duty to serve on a jury, and there should be very few exceptions. I do not believe that judges should be excused from service, and I do not believe that lawyers should be excused, either. But, my having said that, some major changes are introduced by the Juries Amendment Bill, and I endorse those kinds of changes, because they are very important indeed.

The second set of changes that I want to touch on, and several members have already referred to them, are the changes to the depositions procedure. I can understand why my very good colleague the member for Whanganui has been concerned about them and has taken part in some of the cross-party discussions. I believe that the safeguard that the Government has agreed to of reviewing Part 5 of the Summary Proceedings Amendment Bill (No 4) after a couple of years will satisfy me. I tend these days to regard depositions in a criminal case in much the same way as I regard interrogatories in a civil case. In one out of 10 cases they may serve a useful purpose but generally I do not think they do. They are very expensive. For example—and this is only one take on expense—five or six lawyers in a complex criminal case undertaking depositions in the District Court over a period of 5 or 6 days can be very expensive indeed.

There is an important rearrangement of the jurisdiction of the District Court. I endorse what the Minister said. Prima facie, these cases can now be heard in the District Court, but one hopes that the High Court and the District Court will work together to ensure that all the burden is not put on the District Court. Hopefully, we can get some of these methamphetamine trials, which go on and on, out of the High Court in Auckland, so that some of the civil litigation can be given priority.

Next I will refer to the Crimes Amendment Bill (No 3), which deals with the important issue of the retrial of previously acquitted persons. It makes sense given the march of technology. The old rule used to be that people could not be retried, but in the circumstances set out in the bill I think that what is proposed is sensible.

Finally, and the Minister for Courts referred to this, the Criminal Disclosure Bill is the mirror image of the tightening up of depositions, and will greatly facilitate the disclosure of information on the part of the prosecution to the defendant, and, in certain cases, disclosure obligations on the defendant to the prosecution.

In conclusion, I am very pleased that this legislation will go through today. It will go some way towards alleviating the pressures in the criminal justice system. For myself, I think a lot more has to be done; I would even go so far as to say there should be a fundamental rethink of whether the purely adversarial system of criminal trials is the right way to proceed, or whether we should be moving towards some sort of inquisitorial system. That is a subject worth discussing. I certainly hope that before too long we will have some reforms to the civil justice area. I know that the Rules Committee of the High Court has been working on rules to reform District Court procedure and High Court procedure, and I certainly hope we can have those matters resolved before Parliament rises for the election. I am very concerned about the fact that justice is being denied to people, or if they have access to justice, it is too expensive.