Criminal Procedure Bill

Dr Pita Sharples, Maori Party Spokesperson for Courts

Tuesday 9 May 2006; 8.20pm

Mr Speaker, here we are again with another Omnibus Bill before us. In fact, it's a massive omnibus Bill bringing together the complex and diverse pieces of legislation incorporated in crimes, summary proceedings, District Courts, Juries, and Victims Rights Acts and to provide for a new Criminal Disclosure Act.

Another omnibus Bill which tweaks with the detail, seeking to become smooth operators in processing people through the justice system, but continuing to side-step the big picture problems of increased offending and prosecution.

The purported policy goal of this Bill is to maximise both the efficiency and the fairness in the criminal justice system.

But how can it be fair that although they represent 13% of the population over 14 years of age, Maori accounted for 40% of all arrests?

41% of all prosecuted cases
44% of all people convicted; and
50% of the prison population.

The Maori Party wants to initiate real and meaningful dialogue about what justice really means, and we do this against a background of statistics which reveal an uneven participation at the hands of our justice system. For example:

- Maori are three times more likely to be apprehended for an offence than non-Maori, and four times more likely to be apprehended for violent crime.

- Prosecution rates are considerably higher for Maori than for non-Maori (88 against 18 per 1,000).

- Conviction rates are 50 per 1,000 for Maori compared to 12 per 1,000 for non-Maori.

These are the hard cold facts that we look to the Criminal Procedure Bill to address.

Mr Speaker, against this background of over-representation in arrests, convictions and jail sentences, it must be noted that now, more than ever, Maori groups such as iwi, hapu, whanau, community committees, wardens and special purpose groups are increasing involved in strategies designed to reduce these inequalities as well as working to promote economic development - and Maori success in business.

Despite this effort, however, disparities continue to exist between Maori and non-Maori with regard to employment, income, health, housing, education as well as in the justice system.

To this end, the Maori Party holds that despite the current popular political climate of 'racial funding cleansing' there is a need for specific measures based on ethnicity to strengthen the social, economic and cultural rights of Maori. We remain firmly of the view that justice for Maori includes socio-economic considerations as well as underlying institutional and structural marginalisation.

We have then serious questions to ask around the new provisions introduced in this Bill.

1 Trial by Judge instead of Jury

Our concern is how we can enhance community involvement in the justice process.

Reverting to one Judge to rule rather than a Jury of twelve - although it is specified in two particular cases - has worried us

Justice must not only be done, it must be seen to be done.

New Zealanders have grown up with the idea that we have a right to be heard by a jury of our peers, to be participants in democracy.

Learned colleagues within this House will know that "Democracy" is derived from the Greek word demokratis, meaning demos - the people and kratia - power. Democracy has a history that started in the days of the Spartans and Athenians of Greece, prior to 500BC. It ignores hereditary class distinctions, it tolerates minority views, it embraces diversity.

Democracy is also a very familiar concept within Te Ao Maori. Within our communities, matters will be debated at length, consensus is preferred, and as anyone who has stayed within the shelter of a wharenui will attest, everyone is open to have a say, to be heard.

Our concern with the proposed changes to the Crimes Act 1961 is whether the decision to reduce a democratic structure to the ruling of one judge - no matter how wise and learned that judge is - may set a precedent across the justice sector.

The Maori Party is aware that there are obviously problems with the selection of juries which the Bill is trying to address - mainly that many people don't want to, or can't serve on juries, and given this, while the jury should be democratic in the way it is set up, that is representative of the community, it may not always achieve this.

But trying to address this issue with a stick - the punitive measure of fining people $1000 (up from the current $300) -will never work. The problem could be better addressed by making jury duty more attractive through changes to court processes, to tailor the hours to fit with schools, or to create opportunities to make jury service more family-friendly with childcare and transport.

And most importantly of all, this so called problem with juries, could have been an incentive to introducing citizenship education about the value and importance of being involved, as a community, in justice processes.

2 Majority Verdicts

The Bill introduces the possibility of 'eleven to one' majority verdicts. The Bill puts in place changes to section 17 of the Juries Act 1981 which states that every jury shall comprise twelve jurors.

Maori have had extensive experience of the jury process. One of the interesting features of the justice system that Moana Jackson has spoken about, is that while defendants are frequently Maori, juries are invariably Pakeha, often because potential Maori jurors are challenged. One wonders how a Pakeha accused would feel appearing before an all Maori jury - it would never happen.

In fact, the history of tangata whenua experience on juries bears some time in this House. Despite a brief period between 1844 and 1868 - only 24 years - when Maori were able to serve on a mixed jury for the trial of any case in which the property or person of a Maori might be affected; Maori have been prevented from taking up their democratic right to serve on ordinary juries.

From 1868, no Maori could serve on a jury if either accused or victim was a non-Maori. The law remained in this form for nearly a century. That's right. One Hundred Years!!!

It was only in 1965, that legislation placed Maori on an equal footing as far as jury service was concerned.

So having only fairly recently gained the right to be eligible to serve on a jury, the last thing we will look to do is now to look to reduce it again, or to settle for a more limited number of jurors in supporting a verdict.

The notion of an unanimous verdict is an important one. The Law Commission reminds us that the value of a unanimous verdict is that it increases community confidence in the verdict and in the criminal justice system - again which is desperately needed.

Being required to reach an unanimous verdict encourages careful discussion and increases the likelihood of each juror participating and being listened to.

It is a worthy aspiration - indeed one which this House could well learn from.

3 The third point I want to refer to the concept of Double Jeopardy.

The Bill introduces exceptions to the double jeopardy rule. The Maori Party is opposed to any such changes coming into law. People should not be placed at risk of being prosecuted twice, of being persecuted by the police.

4 Criminal Disclosure

Finally, the Maori Party is in support the need for criminal disclosure, and we support the recommendations from the Select Committee to reaffirm an accused person's right to fair process.

The Criminal disclosure parts of the Bill will ensure that adequate and timely disclosure to and by defendants will occur, so that they can prepare their cases and determine how to plead. This will include the imperative for police to also present their case to the defence, to ensure that defences can be properly constructed. Disclosure requirements are codified in this Bill - and we support the intention behind this.

This House must be aware, that the spotlight of the world is on us, in the aftermath of the very poor report card we received from the United Nations Special Rapporteur. We remind this House of the rights of indigenous peoples, recognised in Article 33 of the draft declaration, that:

"Indigenous peoples have the right to promote, develop and maintain their institutional status and their distinctive juridical customs, traditions, procedures and practices in accordance with internationally recognised human rights standards. "

The Maori Party stands up for these rights, and will not tolerate, any further, any act of Parliament which serves to threaten, minimise or undermine these rights.

Justice must not only be done, it must be seen to be done.

ENDS

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