Criminal Procedure Bill

The debate on Part 4 includes debate on the amendments set out on Supplementary Order Paper 97 in the name of the Hon Mark Burton.

I am delighted to take a call in relation to Part 4 of the Criminal Procedure Bill. I find there is some irony that a bill designed to address delays, albeit in the judicial system, has itself been delayed more than 4 years. Having said that, it is my pleasure to address Part 4, which in essence refers to juries and, in particular, to changes to the current requirement for a unanimous verdict in criminal jury trials to a majority verdict of 11:1. If the jury has deliberated for at least 4 hours and the jurors have been unable to reach a unanimous decision, the foreman has stated there is no probability of the jury reaching a unanimous decision, and the court considers that the jury has had a reasonable time to deliberate, bearing in mind the complexity and the nature of the trial, then in that case a majority verdict may be allowed.

It was interesting to look back at some of the anecdotal situations way back in 2004. I have here an article from the New Zealand Herald about a situation with a jury, in which comments were made that “ ‘People wanted to get home to watch Coronation St or see the kids or whatever they do. After 5 o’clock, the whole situation became irrational beyond your belief.’ The last two to desert his viewpoint were smokers, one of whom had been more adamant than himself at the outset that the accused could not have committed the crime. ‘But after 10 hours without a cigarette, he would have locked his own mother up.” I think if one looks at anecdotal situations like that, one can certainly see the merit in not requiring the unanimous verdict of a jury. There are obviously situations where one of the jurors may be intransigent for whatever reason, or may not be responsive to logical argument—and often we see that even in this Chamber—and this amendment may certainly overcome that.

In civil cases under the bill the majority verdict may be by at least three-quarters. I note that the New Zealand Law Society submitted that juries should not comprise fewer than 10 jurors, but this submission was not carried forward in the bill. I would certainly be interested in the Minister’s comments as to why that recommendation was not listened to.

There are also provisions for certain persons to be excluded from jury service—for example, lawyers, which is a fairly obvious exclusion—and for restrictions on the use of the jury panel list in an attempt to address juror interference or intimidation. Defendants in the case may be shown a copy of the list but it may not be left in the possession of the defendant or any witnesses or victims, and reasonable steps must be taken to ensure that the list is not copied. Again, anecdotally, we hear of instances of juror intimidation, which is a situation that really should be avoided wherever possible.

There are also provisions whereby judges may discharge persons being summonsed for jury duty on the additional ground of having difficulties understanding or communicating in the English language. Again, anecdotally, we have heard of jurors who have sat through the duration of a trial but are unable to understand what is happening. That situation should be remedied by Part 4.

Also of note is the reduction in the number of challenges available without cause. That has gone from six down to four, although we are not sure why. Under the bill the jury districts are being expanded and the pool of jurors is being increased, so why then reduce the number of challenges? Again, I would appreciate the Minister taking a call on that point as well.

I return to juror interference. If the Law and Order Committee and others were concerned about the possibility of juror interference or intimidation, then the provisions of clause 82 in relation to sequestration of juries seem somewhat anomalous. Why let jurors leave before reaching a verdict and return to resume deliberations? Surely that is the very time that they may be subject to intimidation and subject to influence. They may be subject to uninformed opinions of family and friends. They could be swayed by external influences. Again, I ask the Minister in the chair to take a call on the benefit that he perceives there is in abolishing that sequestration requirement, which has worked in the past.

Before I call Dr Worth I will just say that there is a change in the sound in the Chamber, in that people having conversations in here are much louder today for some reason. I think it is to do with the changing of the sound system. It makes it hard for me in the Chair to hear the speeches being made. I ask members to lower their voices or keep away from those very sensitive microphones. It would be a very good idea. Thank you.

Kate Wilkinson has skilfully sketched out the changes in Part 4. I just want to focus on one particular aspect, because it is a huge change in the criminal law. That is the entitlement to be judged by a jury of one’s peers, and that all 12 of them must reach a unanimous verdict. This bill proposes a major change in that regard. The present law in New Zealand is that in all criminal cases the verdict of the jury must be unanimous. Now we are to contemplate this change to majority verdicts in criminal cases. The proportion we have chosen is 11:1. So to convict, 11 jurors must say “guilty”, but one may stand out.

It is interesting to look at other jurisdictions to see what they have done. There is no doubt about it: there has been an increasing trend towards majority verdicts. I will pick a few illustrations. In the United Kingdom the proportion is 10:2, in the Northern Territory it is 10:2, in Tasmania it is 10:2, in South Australia it is 10:2, in Victoria it is 11:1, in Oregon it is 10:2, in Hawaii it is 10:2, and in Alaska it is 10:2.

These majority verdict changes are just part of a raft of changes in this legislation. There are also changes relating to the very existence of juries in complicated cases, and cases where juror intimidation might be an issue. I thought it was interesting that the Law and Order Committee heard some arguments to the effect that there was no evidence of rogue juror problems in New Zealand. The Law Commission took a quite contrary view in that regard and said that there was. It is difficult to identify the incidence of rogue jurors in New Zealand because, in terms of the Juries Act, what goes on in the jury room is not to be disclosed. But certainly my experience as a lawyer before entering this House was that rogue jury outcomes were not at all uncommon.

I tell the Committee of one such illustration, which I think is typical. An accused person faced charges of being a drug mule. This person had brought substantial quantities of cocaine into New Zealand for a dealer, and was apprehended by the Customs Service and charged. My informant sat on that particular jury. That informant told me—and there was a hung jury in this case—that several of the jurors were not prepared to convict the accused person because the accused person had not admitted to the offence. Because there had not been an admission to the police, the jurors were prepared and determined to stay out of a deliberation of “guilty”. It just shows what can go on in the closed confines of a jury room.

I think it is interesting, too, that the Law Commission has apparently “found that in a study of 48 jury trials, five were hung, two of which involved rogue jurors refusing to participate in deliberations, and three with rational dissenting jurors.” Members of the Committee may know that the reality of jury selection, with rights of challenge, is that defence lawyers seek to construct a jury of malleable and simple folk. That is a reality of the jury selection process. The reality is, also, that a number of jurors have had brushes of one sort or another with the police, and often quite clearly have no sympathy for the police or Crown view of events—for the prosecution view of events. So I do not doubt for a moment that there is real merit in this plan to have majority verdicts as we stay with the jury system—a system that both English common law and the United States constitution recognise as a fundamental civil right.

I will speak briefly about payment of jurors, referring to clause 82B. I think we should give a great tribute to all those New Zealanders who attend and take up the role of jurors, sometimes for some considerable length of time. I think we probably all believe they do not get paid anywhere near enough for the wonderful contribution they make to our society. Clause 82B gives some recognition to the role of the juror, and provides that the principal Act is amended by adding the following subsection: “The jury rules prescribing those fees and expenses may authorise the chief executive, if satisfied in a particular case that it is desirable to do so, to increase a sum otherwise payable under those rules.” I ask the Minister what consideration has been given to giving effect to this provision from time to time. I ask that he clarify just who the chief executive is—whether that is the chief executive of the justice department or of the courts department. There is no interpretation section here—the phrase “chief executive” must be in the main Act, I presume. As I looked at it I was wondering about those words and just what they meant, because we should do all we can to reward jurors as much as we can—and that is still nowhere near enough—for the wonderful work they do.

Apart from that, of course, what we are doing in New Zealand is amending the provision of the Great Charter of 1215 in Runnymede, which provided for the beginnings of trial by one’s peers—the barons in those days—and which has developed through history to one’s fellow man and woman. New Zealand First supports Part 4 of the bill, and I look forward to any answers forthcoming from the Minister.

I will just pick up on a couple of points. I thank Dail Jones for his contribution. I reply to him, simply, that the chief executive he refers to will be the chief executive for the department, which is the Ministry of Justice. He asks when this has been done in the past—well, it is only about 2 years ago, I think, that we increased jury fees substantially. I guess it is time to look at the matter again. This legislation makes the system to do that much easier than it was previously.

The second point I make to Mr Jones is that if someone is quite distressed about the level of fee reimbursement they get, and they are suffering financial hardship as a consequence of their service, they can apply to the registrar of the court, who can make an individual decision about that. So there are ways of relieving the pressure. But I would pick up on the point that he has alluded to, which is that being on a jury—being part of a panel of people who sit in judgment of one of their fellow citizens—is, in my opinion, a very important part of citizenship. I think we sometimes need to remind the public of that—that if we want to have a justice system and to be tried, and made judgment on, by our peers, then we have to make a contribution to that as well. We should see it not as an onerous burden but as a privilege of citizenship. The contribution by Richard Worth was, as usual, well made. He traversed the world, as he is wont to do, giving out the list of facts and figures on who has what—

💬 Hon Judith Tizard: And the whole of his lifetime back to Henry VIII.

—and as usual delved into history. I am surprised he has only gone back as far as Henry VIII on this particular occasion. But Mr Worth makes the point very plain that many other jurisdictions have moved to a majority of 10 for and two opposed. We have taken a more conservative approach—11:1—which I think says that we are being cautious in this regard. I support that.

Kate Wilkinson made the observation that we could go down to 10:2 and asked why we did not make changes in that area. I refer her to page 24 of the commentary on the bill, which states: “New section 22A does not permit juries of fewer than 10 except with the consent of both parties.” That is a sensible thing. It continues: “We considered specifying that a majority verdict should be permitted only if there are 12 jurors, but decided against it. If defence counsel has concerns in any particular case about a verdict from a majority of fewer than 9 out of 10, they can choose not to consent to the trial’s proceeding.” So the decision rests with the defence in that particular case.

The last observation I make is that the Criminal Procedure Bill is a bill that I think members generally agree is full of many good points. The debate shows the constructive discussion we have had, and the constructive discussion we have had about significant reform, and I welcome that. Just to recap, I note that this particular legislation will do quite a lot for our juries in New Zealand. It will extend the jury districts from 30 to 45 kilometres from the courthouse. It will update the list of persons who do not have to serve, or cannot serve. It will make the penalties for not serving go up, so there is a bit of carrot and stick in here. It changes the rules around challenging juries, and there are many other changes. This is a significant package of reform, which, I think, will improve the jury system quite significantly.

The question was put that the amendments set out on Supplementary Order Paper 97 in the name of the Hon Rick Barker to Part 4 be agreed to.

Amendments agreed to.

Part 4 as amended agreed to.

Part 5 Summary Proceedings Act 1957