Criminal Cases Review Commission Bill

Thank you very much, Madam Chair. At this, the committee stage of the Criminal Cases Review Commission Bill, I will be making a contribution to commence the National Party’s consideration at the committee stage, which focuses on a handful of amendments that we wish to put forward with a view to improving the bill without straying from the reasonably narrow remit that is the committee stage.

I think it’s possibly worthwhile if I just reiterate that the National Party has not supported the proposal up until this time. I can confirm that we will continue to not support the proposal that’s inherent in the bill as a whole. But notwithstanding that, we think it is worthwhile to make some suggestions about how the bill may be improved. In doing so, we acknowledge the likelihood of its passing in terms of the Government parties supporting the concept in the bill as a whole. They have so far, and there’s every indication they’ll continue to do so.

So that’s the background to the proposal that we’re making in two different Supplementary Order Papers (SOPs) that are now before the committee. I will speak to them in numerical order, as it turns out: Supplementary Order Paper 399 in my name and then Supplementary Order Paper 400 in my name. I acknowledge that the Minister of Justice has today released Supplementary Order Paper 398, which has a number of other changes that the Government side wishes to put forward, amending the bill that emerged from the select committee, of which I was a part. Those are largely technical and likely to be uncontroversial. Certainly, it’s not something that I envisage us on this side of the House taking up too much of the House’s time debating.

So then, in terms of SOP 399, this is an amendment, as I say, in my name that sets out a protection—or a partial measure of protection—in relation to victims of crime and their status in relation to the Criminal Cases Review Commission doing its work of considering applications to review and refer.

I’d like to structure my remarks under five different headings. The first is to consider the status of a victim to crime as a non-party to proceedings but, nevertheless, one who is involved intimately in their operation. Number two: pointing out that we’re not suggesting that a person who is seeking to overturn a possible miscarriage of justice be precluded from that right, but, rather, introduce an element whereby there’s some balance such that the victim’s needs and impact are considered at the same time. Third: to acknowledge the mechanics, really, of a person being found guilty and then potentially being found innocent again later and the implications of that, again in terms of how a victim’s situation would be affected by that. Fourth: just some slightly technical aspects in terms of how we would relate this SOP back to another piece of legislation in defining what it is to be a victim. And fifth and final then would be just how we propose to do that in technical terms about the way that the referral would be considered by the commission.

So then, the first of those: thinking about the fact that the victim of a crime is not a party to the crime. Criminal cases, by definition, are between the State and the alleged offender, who, if found guilty, we would call the guilty party, as they would be at that moment in time until such point as they make an application that is accepted by the Criminal Cases Review Commission. None the less, the victim, despite not being a party in that sense—that technical sense—is of course a person who is involved who is vulnerable. The etymology of “vulnerable” is one who is able to be wounded, but, of course, the person will have already been wounded, whether physically or emotionally or perhaps in some metaphorical way. So the victim is an important player in all of this, and, from the National Party’s perspective, it seems wrong that the legislation would not acknowledge that at least in some way. So that’s the first point.

My second point, as I had foreshadowed earlier, was that we’re not suggesting—for the avoidance of doubt I’m pointing out that we’re not suggesting—that a person should not be able to have the right of appeal through the regular courts, of course, or even under the royal prerogative of mercy, as is partly amended by the Criminal Cases Review Commission Bill, but rather that the right be exercised in a way that does take into account a victim having the ability to have their needs considered at the same time.

My third point was acknowledging that a person who has been affected by a miscarriage of justice in the sense that they have been found guilty—[Bell rung] Madam Chair.

CHAIRPERSON (Hon Ruth Dyson): Chris Penk.

Madam Chair, thank you—by default, but not fault I hope.

💬 Hon Tim Macindoe: I’m keen.

Oh, you’re keen as well. That’s a great relief to us all.

Acknowledging that for a miscarriage of justice, if it is alleged to have taken place, we’ve moved beyond a point where a person is deemed to be innocent until they’re proven guilty. The person has, by definition, at this stage been proven guilty already, and so in that sense they remove guilty until disproven—or until proven innocent, I suppose you could say, in the way of an appeal, albeit that, of course, the onus of proof is such that it’s not a straightforward mirror image of the original finding of guilt in the first place.

But it’s worth pointing out in all of this that a victim of a crime remains the victim of a crime, even if the perpetrator’s identity has been mistaken. So if person A has been, let’s say, attacked by another person—we’ll call that person B—and person B is successful in having their case reviewed and referred back to the courts and possibly overturned at that point, person A remains a person who is assaulted, albeit that it might have been a third person, person C, who had done that. So the victim does retain the status of a victim, unless, of course, they’d fabricated the whole incident in the first place. So they have an important status in this, notwithstanding that a miscarriage of justice may have taken place.

As to what a “victim” means, that is defined—and I move now to my fourth point, for those following along at home—already in the Victims’ Rights Act 2002, and so it’s a pretty easy matter from a drafting perspective. Luckily enough, because we did do our work out of our own office in this. We refer to a victim as having that meaning already given in that Act. And so it is to my fifth and final point on this, that we are saying that in addition to all the other things that the legislation already says that the commission must have regard to, we are simply adding an extra criterion, a fifth, I suppose we could say. Really it’s the fourth, because the final one’s a catch-all: “any other matter that the Commission considers relevant.”

We are saying that it should always be the case that the victims and the impact on the victims should be considered. Whether or not, as I say, that would have sufficient weight to overturn in the mind of the commission whether they review or refer is another matter. So much for that SOP 399.

Turning now to the next one in the order, in fact, and the other one that’s been put forward from this side of the Chamber, SOP 400—we’re proposing a couple of different things within that. I sense a colleague or two of mine is winding up to speak to those, so as far as I can get in the next couple of minutes, again, I just emphasise the vulnerability of a victim, and that really leads to the point that a victim should be notified if the commission is turning its mind to a case, if an appeal or rather an application to review is being made at various different points of the process. We are saying that the victims should at least get that heads-up that the case might be reopened—that something that does affect them and has affected them and will continue to affect them is going on.

So that’s the important principle that lies behind the proposal that we’re making in SOP 400 in relation to clauses 25, 26 and 27. I’ll read out only the first of them because the others have the same flavour and it would be repetitious unduly to read out all three. But the first of them, as relates to clause 25, states, “(1A) The Commission must, as soon as practicable after making a decision under the section, give … notice of the decision to investigate the conviction or sentence to any victim entitled to be notified under [the relevant section, let’s say] of the Victims’ Rights Act 2002.” And as I say, the equivalent provisions are provided in this SOP for the other parts of the process whereby a person would apply to the commission, the commission would make a decision, and then the person who is the victim of the crime of which another person has been convicted would have the right to know that that’s happening.

And that might be important for quite practical reasons. It might be that the person will need to make arrangements from their work to have time off to give evidence, or it might simply be a matter—and I say “simply” perhaps in error; it might instead be the case that a person needs to prepare emotionally for the fact that a matter that’s affected them very deeply in the past is about to become part of their present and perhaps the future going forward as well.

So for all these reasons, we’re putting forward these suggestions in the hope that Government parties will adopt them as we go forward with this committee stage.

Thank you, Madam Chair. I was a little hesitant because I was hoping that either the Minister in the chair, the Hon Nanaia Mahuta, or a Government member would stand to seek the call. This is an important measure, but perhaps the fact that I don’t think I’m going to get a full call could have influenced their decision at this point.

I want pick up where my very fine colleague the honourable member for Helensville has left off and commend him for the work that he is doing as National’s spokesperson for courts. He has been leading the charge for our side on this particular measure. And as with everything he’s touched in his two years here, he has shown himself to be thoroughly professional and thorough in his treatment of the issues—and occasionally a little bit pedantic in his use of the language, but that’s OK.

As the member for Helensville has noted, National is opposing this bill. But we are a responsible Opposition and we take seriously the onus that rests with us to work to improve the bill. And that is why we have come forward with some amendments. But I just want to pick up on the fact that we are opposing the bill for some key reasons, and I think it is worthwhile just to restate them.

Our main concern is that this is a very expensive measure that we think is set to open the floodgates to anyone who believes that they may have suffered a miscarriage of justice. Now, it is important that miscarriages of justice are dealt with, but we have an appeals procedure through several courts. And it seems to us that this is setting a very low threshold and is an additional measure that is going to be expensive, time consuming, and which, in many respects, will have the effect of, if not re-victimising those who are victims of crimes, certainly adding to the trauma of some.

Now, I would have hoped that the Government by now would have spoken to their own amendments, because the Minister of Justice has tabled Supplementary Order Paper 398, and it’s just, in the minute or so remaining—

I’m very sorry to interrupt the member, but the time has come for me to report progress.

House resumed.

The Chairperson reported progress on the Criminal Cases Review Commission Bill.

Report adopted.

The House adjourned at 9.56 p.m.