Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill

When the debate was interrupted on the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, I was just making the point that it deals really with three matters. The first relates to the circumstances in which the personal information, including the addresses, of jurors can be accessed by persons, including defence counsel and unrepresented defendants. The second situation with which the bill deals is the position of persons, in particular those over 65 years of age, who want to be excused from jury duty, and what the legislation does is it allows people in that category to get a permanent exemption from the requirement to serve on a jury. The third thing that the legislation would do is to close a loophole in the Sentencing Act 2002 so as to treat people who are sentenced to home detention essentially on the same basis as those who are sentenced to a custodial sentence, as far as entitlement to serve on a jury is concerned. So those are the three main things that this legislation does.

On the first point around the access to entitlements to juror information, we are told from the Cabinet papers—because, as I said last night, there is no regulatory impact statement; this particular bill was not regarded as significant enough to produce one—that there was a case last year where “a self-represented accused corresponded with persons whose names and addresses were on the jury panel for his trial. This raised concern about the safety of jurors, and it was decided to amend the Juries Act to restrict access to jurors’ address details.” So, under the bill, defence attorneys and advisers to defendants representing themselves will not be permitted to show a juror’s address to a defendant. Well, we support that. We can see that there is a case for it. If there was a situation where that was abused, then of course jurors ought to be protected from intimidation in any way that this House can manage it.

But as was pointed out in the Committee stage, there are some problems with this part of the provision. We really are seeing only partial protections. We could have seen a much more imaginative approach from the Government, particularly in the age of Google and social media, where, essentially, it is possible for anybody in the well of the court—as members around the House who have had experience in the courtroom, through fair means or foul, will know—to look up a juror’s details provided you have their name. You can google it, you can find it through Facebook, and you can look in the telephone book. So I do wonder whether, as I said in the Committee stage contribution that I made, we are going far enough or whether we are providing only a partial protection.

The other concern that I have got about this provision relates to some evidence that we received in the Justice and Electoral Committee around the effect of the Government’s proposed cuts to legal aid and legal aid entitlements. That relates to judges coming along to the select committee and telling us that there would be, inevitably, a massive increase in the number of self-represented defendants coming before New Zealand courts. It is just a fact of life that when you make it more difficult for people to access a lawyer when they are accused of a crime, many are going to turn to the last resort of representing themselves. Obviously, what the judges told us is that in that case they are going to need to slow trials down and slow processes down in order to avoid appeals. In order to preserve the actuality and the appearance of fairness in the courts, the judges are going to have to treat self-represented defendants very, very carefully.

As we see this great increase in self-represented defendants, I think there are going to be two effects as far as juries are concerned. Even when people representing themselves are admonished not to contact jurors personally, the reality is that some of them will not understand the admonishment adequately. So there will be more attempts to google, and to facebook, and to look up in the phone book the names of jurors who, in the mind or the eyes of the self-represented defendant, just have not done a fair job by that person.

The second effect is going to be that there will be self-represented people who just do not care about the admonishment. They are not bound by the ethical codes that barristers and solicitors are. They are not going to care if they are told by the court not to look up the jurors’ details. They will go ahead and do it. I am concerned that we have not put in place a regime that makes it effectively an offence to do that on a much more established and clear basis than is the case now, where really this is just a matter for the contempt powers of the court. That is where I think we are failing in this particular provision, and that is why I have some concerns about it. But on balance, because it does provide better protections than exist at the moment, my colleagues and I will support it, with the reservations that I have stated.

The second provision that I mention substantively that this legislation will deal with is the amendments that are put in place around the entitlement of persons over 65 to get a permanent excusal from jury service. I understand that the motivation for this is well intentioned. We heard, again in the Committee stage, that this was designed to show some appreciation and some recognition of older New Zealanders’ service, and to say it is cruel to make them continue to apply for excusals on a continuing basis, if they are summoned more than once for jury trials. I understand the logic of that, but I do not agree with it. Here is why: it is simply a question of demographics. We are going to have over a million New Zealanders over the age of 65 in 20 years’ time. We simply cannot afford to deny juries their experience in the service of the justice system. So this is really silly public policy. We oppose that part of the legislation.

Finally, the loophole in the Sentencing Act is to be closed so that we do treat people on home detention and people in custodial situations in the same category as far as preserving the purity and the unbiased nature of the jury pool is concerned. That is probably good public policy and we do support it.

So we have three substantive provisions: one that is bad, one that is good, and one that is, frankly, a half-measure, but it provides better protection than exists at the moment. So on balance we are supporting the bill, but it is inconsistent with good public policy generally. It will create greater problems as we see the move to more unrepresented defendants. And it is oddly prioritised. The legislative history of the bill shows that it has been on the Order Paper since 5 April 2001. It is only now that we are progressing it, and with this sort of leisurely timetable—

💬 Hon Trevor Mallard: 2011.

2011, I beg your pardon. But that is bad enough—5 April 2011 till 13 September 2012. If we were serious about the sorts of measures that are contained in this legislation—if the Government was serious about providing better protections to jurors and about its law and order agenda generally—then we would have seen, first of all, a much better-thought-out series of measures, but, secondly, also much better legislative progress for this sort of measure, because it is the sort of thing that ought not to languish as long as it has.

The Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill does improve the jury system’s administration and also helps maintain jurors’ privacy, safety, and security. Unlike the previous speaker, Charles Chauvel, I regard those aims as being particularly important and would note that this bill does deliver on those aims.

Firstly, I want to thank members of the Law and Order Committee, who worked on this bill in a very collegial manner. It is a feature of the Law and Order Committee that we tend to focus on the substance of debates, having got procedure pretty well tied down. We do have our differences in the committee—of course we do—but I just want to thank all members for their good work on this bill. I also want to recognise the work of the officials who assisted us on this bill.

This bill follows measures that were rolled out in 2010 to make life easier for jurors.

💬 Hon Trevor Mallard: One of the better backbenchers.

I can see it is getting awfully late for some of those junior members across the House, but never mind, it is almost home time for the young and the infirm. It is all right if it is getting too much for those who are getting on in years, with early onset perhaps. Well, never mind. We will get on with the bill, and it will be over pretty soon.

There are three main provisions in this bill: preventing certain people sentenced to home detention from serving on a jury, and other matters; empowering registrars to permanently excuse people over the age of 65 from jury duty—and I want to pick up on that point in a minute—and protecting jurors’ particulars. First of all, I will pick up on that point. Currently, the jury list must contain the name, the occupation, the date of birth, and the full address of potential jurors. Since 2008 self-represented defendants—those people who are representing themselves—have been prohibited from keeping a copy of the jury list or taking notes of the contents of the jury list, but they could still inspect it under supervision. So they could still see it.

The changes that were made in 2008 were designed to protect the privacy of jurors, but there was a particular case, a particular incident, that highlighted the need to further restrict access to that information. A convicted murderer wrote to a juror and caused considerable distress to that juror, whose name he saw on a list while representing himself in a trial. So this bill removes the address of potential jurors from jury lists. It allows the prosecution, the defence lawyer, and the court-appointed adviser to defendants representing themselves to have access to all the address information, on request, but it does restrict the information on that list from ever being seen by the accused.

The bill extends section 14A(6) of the Juries Act, and makes it clear also—and this is another provision brought in by the select committee—that misconduct in relation to jury lists may be treated as a contempt of court. A further aspect of this bill prevents certain people sentenced to home detention from serving on a jury. This closes a loophole that was discovered in the Sentencing Amendment Act that created home detention as a sentence in its own right but it failed to amend the Juries Act.

Further, this bill gives registrars the power to grant a person permanent excusal from serving on a jury on the grounds of age, disability, or chronic health problems. It seems to have escaped the Opposition that this is something that is acknowledging people over the age of 65 who might, for whatever reason, find it difficult, or maybe they simply do not wish to serve on a jury anymore.

💬 Kris Faafoi: What did your leader say about older people during the election campaign?

Sorry, what was that?

💬 Kris Faafoi: What did your leader say about older people during the campaign?

You see, it seems to have escaped the Opposition that this provision in the bill recognises that there are people over the age of 65 who may have a disability that makes it really difficult for them to attend jury duty. I do wish members of the Opposition would give some consideration to people who have got disabilities, because it must be really hard for them to receive a letter in the mail from the court registrar requiring them to serve on a jury and for them to yet again, time after time—and we were told this during the select committee consideration—have to front up to the registrar, or phone, or write a letter, and explain time and time again that, yes, they have a disability and, no, they do not wish to serve on the jury.

This bill does a very good thing, because it spares people having to do that. Why the Opposition does not see this as giving dignity to people over the age of 65 is completely beyond me, but that is a matter for them.

Debate interrupted.

The House adjourned at 6 p.m.