Courts (Remote Participation) Bill - Submission to the Justice and Electoral Select Committee [2010] NZHRCSub 8 (16 April 2010)

Last Updated: 28 June 2015

Submission of the

_{Human Rights Commission on}

_{Courts (Remote Participation) Bill}

_{To the Justice and Electoral
Select Committee}

16 April 2010

Contact person: Michael White
Legal & Policy Analyst
_{Direct Dial [phone]}

We wish to make oral representations on this submission

Courts (Remote Participation) Bill

1. INTRODUCTION

1.1 This submission is made by the Human Rights Commission („the Commission‟). The Commission is an independent Crown entity that has responsibility for administering the Human Rights Act 1993 (HRA). One of the Commission‟s primary functions is advocating and promoting respect for, and an understanding of, human rights in New Zealand society.

1.2 The Courts (Remote Participation) Bill (the Bill) provides for appearance by way of audio-visual links (AVL) for any participant in civil or criminal

_{proceedings. In summary the Bill provides for:}

a presumption in favour of the use of AVL in criminal procedural matters;

the use of AVL in criminal substantive matters on the application of any party or on the judicial officer‟s own motion (whether or not an accused consents); and

the use of AVL in civil matters where the parties consent, or on the

_{application of any participant or on the judicial officer‟s own motion.}

1.3 The Bill represents a substantial departure in judicial process, is broad in its scope and does not appear to be based on evaluative evidence of potential impact.

1.4 The Commission recognises the importance of the effective functioning of the justice system and endorses measures that enhance the efficiency of the courts and increase access to justice.

1.5 The introduction of AVL invokes a number of significant human rights:

the right to justice; the right to a fair and public trial; the right to be

present and to present a defence; and the right of victims to participate in proceedings and to “confront” the accused.The State has a duty to protect these rights and any measures aimed at reducing costs and delays in court procedures must be balanced against relevant human rights to maximise respect for all rights and right holders.

1.6 The Commission recognises in principle that the use of AVL may be an appropriate tool for certain civil proceedings. In the short time available to make a submission on this Bill the Commission has been unable to complete a full analysis of all types of cases which would come under the broad categorisation that the Bill anticipates. The human rights implications in any non criminal case involving detention or other penalties need to be carefully considered.

1.7 The Commission further acknowledges that the use of AVL may be appropriate in criminal proceedings in certain limited circumstances where important case specific reasons of public policy necessitate it, such as the State‟s duty to protect the physical and psychological well- being of child abuse victims.

Trial Period

1.8 Any introduction of AVL into the justice system should be carefully considered. The Commission considers that prior to the introduction of AVL there should be a trial period in specific courts to evaluate the effects on the administration of justice (including the effect on victims) and the right to a fair trial.

The Bill

1.9 The Commission does not support the Bill in its current form for the following reasons:

certain aspects of the Bill do not comply with certain rights in the New Zealand Bill of Rights Act 1990 (BORA) and are incompatible with the international human rights instruments, particularly the right to a fair and public hearing¹, the right to be tried "in his presence"² , and the right of the accused to defend himself in person;

the Bill risks eroding important victims‟ rights;

beyond judicial review (as affirmed by s27 of BORA) there is no provision to appeal a decision to use AVL in a specific case;

the use of AVL may impact on victims rights to participate in proceedings and the long standing principle that victims have the right to confront an accused; and

there has been no evaluation of the impact of the use of AVL in criminal matters.

1.10 If the Bill were to proceed without a trial period being undertaken, the

Commission recommends the following amendments:

the presumption in favour of the use AVL in criminal procedural matters be reversed, except in relation to child victims and child witnesses;

an accused must be physically present in court for his or her first appearance;

criminal procedural matters where the liberty of the accused is at issue, or where there is an impact on the accused‟s ability to defend the charge may only be conducted by AVL with the informed consent of the accused;

there should be a presumption that AVL will not be used in criminal substantive matters. AVL should only be used in these cases where

_{the case specific facts necessitate it; and}

¹ _{ICCPR Article 14.1.}

² ICCPR Article 14.3.(d).

a review of Act clause should be inserted to determine whether the policy objectives of the Act remain valid and whether the terms of

_{the Act remain appropriate for securing those objectives.}

2. BILL OF RIGHTS ACT

2.1 The long title to the BORA describes it as an Act to “affirm, protect and

promote human rights and fundamental freedoms in New Zealand.”

2.2 Parliament has a role in affirming, protecting and promoting human rights by ensuring that all legislation complies with human rights standards (through the select committee process and in the House of Representatives). This role is extremely important in a unicameral system where there are no other substantive checks and balances on the passing of legislation.

2.3 The Attorney-General is required to advise the House of

Representatives pursuant to section 7 of BORA and Standing Order

261 of the Standing Orders of the House of Representatives if any provision in a Bill appears to be inconsistent with any of the rights and freedoms contained in BORA. Pre-legislative scrutiny by Parliament is even more vital in such cases, where notwithstanding an inconsistency with human rights standards, the Executive nevertheless introduces legislation.

2.4 However, in this case the CLO has suggested (in the Commission's view quite wrongly) that there is no requirement for advice by the Attorney-General.

Civil Proceedings

2.5 Section 27³ of the BORA guarantees the right to the observance of the principles of natural justice which requires that proceedings are conducted in a manner that is fair to, and protects the rights of, all parties.

2.6 The Bill provides that AVL may be used in civil proceedings with the consent of all parties or after a consideration of a range of factors including “the potential impact of the use of the technology on the effective maintenance of the rights of other parties.”

2.7 In general, civil proceedings do not invoke the same range of human rights considerations as criminal proceedings, and the requirement for universal consent would protect the right to natural justice.

2.8 However, it is not clear from the Bill where certain types of cases would fit under the broad categorisation that the Bill anticipates. A wide range of non-criminal legislation, for example, authorise State agencies to detain people. The human rights implications in any non criminal case involving detention or other penalties need to be carefully considered.⁴

Criminal Proceedings

2.9 The BORA provides for special rights in relation to criminal proceedings:

³ The White paper referred to art 14(1) of the ICCPR, which guarantees to everyone the right to a “fair and public hearing by a competent, independent and impartial tribunal established by law” in the determination of, among others, “his rights and obligations in a suit at law.” (Butler and Butler, The New Zealand Bill of Rights Act: A Commentary, 2005).

⁴ For example Immigration cases clearly should not be grouped with criminal cases. However, these cases often raise issues relating to a person‟s liberty. The safeguards in the Bill in relation to civil matters would not be sufficient in such cases.

the right to be brought before a court following arrest (s23(3));

the right to a fair trial (s25(a));

the right to be present at trial (s25(e)); and

the right to examine witnesses on an equal basis to the prosecution

_(s25(f)).

2.10 Section 25 (e) of the BORA guarantees a “right to be present” (described in Article 14(3)(a) of the ICCPR as the right “to be tried in his presence”) and to present a defence. The expression “present” is defined as meaning “being in a specified place”⁵.

2.11 We acknowledge these rights are not absolute. However, the State‟s duty to protect and uphold them may only be diminished where it is demonstrably justifiable in a fair and democratic society.⁶

2.12 The Crown Law Office (CLO) provided a report on this Bill to the Attorney General. In this report CLO determined that the Bill was not inconsistent with the BORA. The Commission disagrees with the report and considers that the analysis provided is flawed.

2.13 In its advice CLO conflates practices in which evidence of witnesses can be given by AVL with that of an accused being entitled to be present and to give evidence in person.

2.14 In support of the conclusion that the safeguards in the Bill are sufficient the analysis relies on Maryland v Craig⁷ that addressed only the giving of evidence remotely by a witness by AVL – not an accused. It was held in Maryland that live testimony via one-way closed-circuit

_{television is permissible under the Federal Constitution, provided there}

⁵ _{The Shorter Oxford English Dictionary, Third Edition.}

⁶ s5 New Zealand Bill of Rights Act 1990. The type of situation in which this may occur is amply demonstrated by the very brevity of the decision of the Court of Criminal Appeal in Smellie (1919) 14

Cr App R 128, holding that a judge could remove the accused from the sight of a witness whom his presence might intimidate. A further example is when it would further the interests of justice to adopt “a system that will assist truthful child witnesses to give their evidence to the best of their ability” – see

Regina v. Camberwell Green Youth Court.

_{http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050127/camb -1.htm.}

⁷ [1990] USSC 130; 497 US 836 (1990) United States Supreme Court), 850.

is an individualized determination that denial of "physical, face-to-face confrontation" is "necessary to further an important public policy" and "the reliability of the testimony is otherwise assured"⁸ . It was found that the consequences of the absence of a witness from the court “may well go to the proper exercise of any discretionary powers in a given

situation”.⁹ The analysis is misleading as it does not include the

Court‟s full and proper reasoning in that case, but cites selectively from

it.

2.15 The Commission does not consider that there is an important public policy reason for the extensive use of AVL in criminal matters, and has serious concerns about the reliability of any evidence given in this form such as the real risk of adverse inferences.

2.16 The Commission submits that the Bill in its current form does not comply with s 23, 25, and 25 of BORA.

Criminal substantive matters

2.17 The suggestion that an accused be not permitted to attend his/her trial in person is prima facie a violation of a long-established principle of criminal systems throughout the common law world where there is a specific finding of necessity before this course can be adopted.

2.18 As noted in the CLO report the use of AVL for the appearance of an accused person appears to be uncommon in comparable jurisdictions, at least without consent. ¹⁰

2.19 The right to be present takes on increased significance when relating to criminal substantive matters such as, inquiries into fitness to stand trial,

_{sentencing, habeas corpus, and the trial itself.}

⁸ Ibid.

⁹ Ibid.

¹⁰ In Queensland appearance of the defendant by AVL is permitted, with the consent of all the parties, only for arraignment and sentencing.

2.20 The right to be present must mean that the State cannot so organise the Court system as to engineer the accused‟s non-participation. The right to be present at trial implies the right, if the accused wishes to attend, not to be tried in one‟s absence.¹¹

2.21 If an accused is denied the right to give evidence in person, then clearly that person is being denied the right to conduct their defence “under the same conditions as the prosecution” (BORA s25(f)).

2.22 Such a barrier would strike at the perceived “fairness” (BORA s 25(a)) of the proceedings (whether or not an accused is disadvantaged), when the prosecution alone has the right to call all its witnesses to give evidence in person. There is a lack of any convincing study that establishes that evidence given by AVL is likely to be as credible as

evidence given in person.¹²

2.23 It is widely considered to be of major importance that an accused person considers he/she has received a fair trial. The Commission considers that there would be a high risk of perceived unfairness on the part of accused persons who, through no fault of their own and in the absence of militating circumstances, is denied the right to be present in person at his/her own trial.

2.24 The use of AVL in these matters further undermines long-standing jurisprudence to the effect that the fact-finding court is generally considered by appellate courts to be in the best position to judge the credibility of the evidence given having “heard and seen the witnesses”. For example the Privy Council has expressed the concept as: “The importance ... of the advantage enjoyed by the judge who heard and

_{saw the witnesses at first hand can... hardly be overestimated.”}¹³_.

¹¹ Butler and Butler, The New Zealand Bill of Rights Act: A Commentary, 2005).

¹² The extent to which remote testimony would be more or less persuasive to a fact finder than in court testimony is an issue to which there is no readily available answer [South African Law Commission

Project 113, The Use of Electronic Equipment in Court Proceedings, p 28]

¹³ Industrial Chemical Co (Jamaica) Ltd v Ellis (1982) 35 WIR 303

2.25 The Commission considers that there should be a presumption that AVL will not be used in criminal substantive matters. AVL should only be used in these cases where the case specific facts necessitate it, and then only in the most exceptional circumstances.

Criminal procedural matters

2.26 In addition to the substantive trial itself, it has been held that the right to be present applies to criminal procedural matters. For example the hearing of pre-trial applications that could have an impact upon the accused‟s ability to defend the charges¹⁴.

2.27 There are some matters of such importance so as to require presence, such as: first appearances, contested bail hearings and any other hearing where a person‟s liberty is at issue.

2.28 The presumption in favour of AVL in criminal procedural matters should be removed from the Bill.

2.29 The right is one personal to an accused, and is one which we consider an accused person is free to waive provided that the consent is freely given after receiving independent legal advice as to the consequences.

2.30 Requiring an accused‟s consent is consistent with international human rights norms and the BORA. Our research shows that the use of AVL without consent for such important pre trial matters only occurs in

_Russia¹⁵_.

¹⁴ _{R v Montalk (CA 66/98, 25 June 1998). See also US v Gagnon [1985] USSC 125; 470 US 522 (1985).}

¹⁵ Interrights, video link technology in criminal trials, research for Jeremy Pope, 13/04/2010..

First appearance

2.31 An accused‟s first appearance undoubtedly is a significant hearing where his/her liberty is at issue, and which could have an impact upon the accused‟s ability to defend the charges.

2.32 It is often at the first appearance where charges are amended. It has been held by the High Court that the right to be present extended to hearings involving an application to amend an information substituting new charges for those originally laid.¹⁶

2.33 Section 23(3) of BORA provides that an arrested person who is not released must be brought before a Court or competent tribunal “as soon as possible”. The general purpose of this section was explained in R v Te Kira¹⁷ per Richardson J:

[s23(3)] prevents the police from keeping those arrested incommunicado and from exerting unreasonable pressure on them in a coercive environment. It facilitates any challenges to the lawfulness of the arrest and allows for the earliest judicial determination of bail. In that way, it allows the subject the earliest opportunity of regaining his or her liberty.

2.34 In Ocalan v. Turkey¹⁸ the European Court of Human Rights held (in relation to Article 5(3) European Convention) that the accused must be physically brought before a judge as a safeguard against torture or ill treatment.

2.35 Bringing a person before a court by AVL would not provide the protections which s23(3) envisages.

¹⁶ Department of Conservation v Gilfillan [2000] 2 NZLR 499, 503 (HC).

¹⁷ [1993] 3NZLR 257, 266 (CA).

¹⁸ no. 46221/99, 12 May 2005

2.36 The Commission considers that an accused must be physically present in court for his or her first appearance.¹⁹

Public Hearing

2.37 Section 25(a) provides for the right to a fair and public hearing. In essence this means that judicial proceedings must be conducted in an open court to which the public and media have access.

2.38 The requirement that proceedings be conducted in public and be publicised is intended to ensure that the public are provided with information about proceedings sufficient for informed criticism. Lord Scarman noted in Home Office v Harman²⁰ that:

Justice is done in public so that it may be discussed and criticised in public...[and]...so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.

2.39 Although the Ministry of Justice discussion paper from which this Bill stems - Audio Links and Audio Visual Links in Proceedings – considers that the use of AVL, even extensively, does not infringe on this right, the Commission disagrees. The use of AVL is at odds with the right to a public hearing and the principle that justice must not only be done but must be seen to be done for the following reasons:

the use of AVL will limit the public‟s ability to observe (and thereby

understand) proceedings as a whole;

the use of AVL may limit the media‟s ability to fully cover a trial with

multiple images being streamed from different sources; and

the potential for a virtual trial²¹ may preclude the public from being present.

¹⁹ As is the case in other jurisdictions such as Victoria and New South Wales.

²⁰ [1982] 1 All ER 532, 547.

Adverse inferences

2.40 The Commission also has concerns about adverse inferences being drawn from evidence given from an accused via AVL.

2.41 The absence of an accused from the court room (and their presence in remand) is likely to colour any jury‟s perception of the accused and the trial regardless of any direction to the contrary from the presiding judge. This raises issues in relation to the right not to be compelled to confess guilt or testify under section 25(d) of the BORA.

3. VICTIM’S RIGHTS

3.1 The State has a duty to protect persons within its territory. Where a crime is committed against a person (the victim), the victim has a corresponding right to demand that an offender be tried, to participate in proceedings and to be present to observe the exercise of justice.

3.2 It is important that a victim is able to fully observe and participate in proceedings to ensure confidence that justice has been done and that their rights have been upheld. Victims are also often encouraged to make their views known to the court at various pre-trial matters.

3.3 It is also a long standing principle of criminal justice that a victim has the right to confront an accused in court.

3.4 The Commission considers that the use of AVL will undermine a victim‟s ability to fully participate in proceedings. Furthermore in the advent of a virtual trial²² victims may be precluded from being present.

3.5 The Commission believes that the use of AVL will result in the effective denial of a victim‟s right to confront an accused in court. This will have a significant impact on victims and his or her family.

4. TRIAL PERIOD

4.1 The use of AVL is a significant departure for long established criminal justice principles. Any proposal to use such a system must be based on a principled approach. Mere economic or administrative principles will not be sufficient in themselves to fulfil this requirement.

4.2 The Regulatory Impact Statement on the Bill suggests that this initiative is based solely on financial imperatives, and that a principled approach to its development and analysis has not been adopted. The Commission notes that there are no financial costings provided to demonstrate cost and efficiency gains.

4.3 The Bill is short on specifics about how the use of AVL in proceedings will work. There are a number of significant unanswered questions such as:

what is the impact on an accused from not being present in court?

what is the impact on an accused being unable to see the whole court room through AVL (for example where support persons are sitting in the public gallery)?

what is the impact on victims and their families from being denied the opportunity to confront accused in court?

what is the impact of the use of AVL on the provision of legal advice to an accused?

what is the impact on communication between accused and counsel?

what will the interface be with media coverage of a courtroom?

how will the examination of any evidence be undertaken if it is required?

will juries be trained – for example not to make an inference of

hesitation where there is a “time lag”?

how many cameras will there be?

how far away from a subject will these be place and what is the impact of this? and

_{how much of the courtroom will an accused be able to see?}

4.4 These questions and the complexities of such a proposal (including the interplay of various rights) should be fully tested before any final legislative framework is adopted.

4.5 Although a pilot in 2008/09 linking the Court of Appeal in Wellington with the Auckland Remand Centre was completed, this was limited to the appellate jurisdiction where evidence is rarely examined, accused are less frequently present, and decisions are made on points of law.

4.6 The Commission recommends that prior to the commencement of the introduction of AVL there is a trial period conducted in specific courts to evaluate the effects on the administration of justice and the right to a fair trial. There is precedent in the extensive evaluation and trialling of cameras in courts from 1995 onwards in the form of the Court‟s Consultative Committee‟s Working Party on Televising Court Proceedings and a three year pilot project undertaken before general coverage. Legal profession opposition and judicial concern was then managed by a Media in Courts Monitoring Committee chaired by Justice Robert Chambers. New Zealand‟s introduction of cameras in

_{court is regarded as best practice.}²³

²³ Stepniak, D (2005) Court TV –Coming to an internet browser near you (update developments and current issues.” 23^rd AIJA Annual Conference on Technology, Communication Innovation, Museum of New Zealand, Wellington, 7-9 October 2005.

5. Virtual Trials

5.1 The Commission is concerned about the prospect of “virtual trials” which are referred to in the Ministry of Justice discussion paper - Audio Links and Audio Visual Links in Proceedings - from which this Bill stems. ²⁴

5.2 The paper envisages trials with judges, juries, witnesses and the accused(s) all in different places, suggests multi cameras in courts, and even makes reference to appearance by hologram. ²⁵

5.3 The Commission is particularly concerned about the human rights implications of these suggestions.

6. CONCLUSION

6.1 The Commission recommends that a substantive trial of the proposal be conducted and properly evaluated by the Judiciary, the Crown, Defence and a sampling of persons accused prior to the introduction of amended legislation.

6.2 The Commission is concerned about the speed with which this initiative is progressing. In the short time available to make a submission on this Bill the Commission has been unable to complete a full analysis of all types of cases which would come under the broad categorisation that the Bill anticipates. The human rights implications in any non criminal case involving detention or other penalties need to be carefully considered.

6.3 If the Bill is enacted in its current form, the Commission believes it will undermine New Zealand‟s commitment to international instruments to

²⁴ _{“With a move toward a „virtual courtroom‟ (para 42).}

²⁵ “Audio visual technology is now able to provide „real time‟ footage and life size images of individuals, with significant technological advances being made (eg, hologram technology) that will allow participants to have a high level of contact throughout a proceeding. (para 80)

which it is a signatory and will contravene fundamental rights contained in the BORA.

6.4 If the Bill were to proceed the Commission recommends the following amendments to the proposal:

the presumption in favour of the use AVL in criminal procedural matters should be reversed;

an accused‟s first appearance must not be by AVL in any

circumstances;

criminal procedural matters where the liberty of the accused is at issue, or where there is an impact on the accused‟s ability to defend the charge may only be conducted by AVL with the informed consent of the accused;

there should be a presumption that AVL will not be used in criminal substantive matters. AVL can only be used in these cases where the case specific facts necessitate it, and then only in the most exceptional circumstances; and

a review of Act clause should be inserted to determine whether the policy objectives of the Act remain valid and whether the terms of

_{the Act remain appropriate for securing those objectives.}²⁶

²⁶ numerous examples of such clauses are available from comparative jurisdictions such as

^Australia.