Tea, Biscuits and the Criminal Reform Bill

By Anna Sandiford 19/04/2011

The Criminal Procedure (Reform and Modernisation) Bill is being touted as the biggest shake-up in New Zealand criminal law for decades (e.g. Justice shake-up will save millions: Govt).  This means the last lot of changes took place in a time before I was born (I don’t know if that makes me feel old or not).  However, the Bill is likely to have ramifications for forensic scientists; I think it’s critical that as a wheel within the justice system, forensic scientists should have at least a passing knowledge of how the reforms might affect them.  So I made a cup of tea, got some biscuits and had a crack at understanding this piece of legislative reform.

As I have probably stated before, I am not formally legally trained; forensic scientists usually pick up the relevant pieces of legislation as they go along, through their forensic science training and any conferences they might be able to attend.  As with lawyers (at the moment), continuing professional development and course attendance is not legally compulsory although it does take place, depending on the individual scientist and their accreditations and memberships.

In brief then, as a non-lawyer, the actual detail of the Reform Bill can be difficult to follow.  However, during my reading of the Reform Bill my eyes are drawn particularly to Clause 64, which is new.  For those not in the know, it ’imposes a requirement on a defendant to give notice before the trial of any particular elements of the offence that the defendant contends cannot be proved; and any particular defence, justification, exception, exemption, proviso, or excuse on which the defendant intends to rely.’ The Bill goes on to say that the reforms will require ’the defendant to formally identify the issues that are in dispute (that is, the nature of the defence to be run at trial) before the trial. There is no legislative requirement on the defence currently to do so, although this occurs on a voluntary basis in some cases. Codifying this practice in statute aims to–

make better use of both defence and prosecution resources:

reduce the length and complexity of trials:

result in a greater willingness by defendants to admit facts, thereby reducing inconvenience to witnesses:

focus the trial for the fact-finder, particularly juries, who will be in a better position to assess the significance of the evidence being presented.’

My first reaction to this relates to time.  One of the biggest challenges faced by forensic scientists relates to time.  ESR sets turnaround times for casework based on their relationship with their main client, NZ Police; this isn’t an unusual situation for a Crown laboratory (turnaround times may well have contributed in part to the downfall of that bastion of forensic science, the UK’s Forensic Science Service, but that’s another story) but it doesn’t necessarily mean that the scientists are provided with as much time as they would like.  Any independent scientist instructed by the Defence also faces turnaround time issues.  These usually relate to one of four scenarios: the lawyer leaving it very late to deal with a scientific issue (for whatever reason); a lawyer being instructed very late in the piece; or being swapped in at the last minute.  When I say ’late’ or ’last minute’ I do mean exactly that —  it’s not unknown to receive phone calls only a week or so before a trial starts or, in some cases, after the trial has started.  With the current speed of approvals for Legal Aid for experts fees, particularly in Auckland, this can mean it takes six weeks for funding to be approved.  How then will it be possible to advise the Court of the basis of the defence if the work can’t be started until after funding has been granted, which could, in theory, be after the trial has finished?!

The observant of you will notice that I have mentioned only three scenarios so far.  The final scenario relates to late serving of Crown reports.  These have recently been as late as the day before a trial starts.  This begs the question, again, of how the issues in dispute can be advised to the Court in a timely manner if the issues aren’t actually known.  Scientists are good, but we’re not psychic.

The Reform Bill goes on to say, ’Because the nature of the issues may change before the trial, there is an opportunity for the defence to amend the issues that have been identified with the court’s leave up until the commencement of the trial. However, it is appropriate that some restriction is placed on the ability to do so, to enable the prosecution to prepare for the trial with some certainty as to what the disputed issues will be. The Bill therefore provides that the court should only give leave if it is necessary to do so to secure a fair trial.

Statutory authorisation is provided to the fact-finder…. to draw an adverse inference from the defendant’s failure to adequately identify issues in dispute, when deciding whether or not the defendant is guilty. An adverse inference may only be drawn if–

no reasonable explanation for the failure to adequately identify the issues in dispute is apparent to the court; and

the court is satisfied that the prosecutor and defendant have been given a reasonable opportunity to be heard on the matter. This opportunity may arise at any stage in the proceedings–in particular, when the defendant fails to identify the issues in dispute before the trial; and

the inference is one that can properly be drawn from the defendant’s failure.’

It seems the intent here is that if the Defence or the Prosecution can demonstrate they received notification too late then the Court will deal with things in an appropriate manner but there is no room for playing games, deliberate time-wasting or annoying the other side just for the sake of it.  I am interested to see how that will work in reality.  I have been in this business for 13 years now and have seen my fair share of comments in front of Judges and Magistrates about how and why matters cannot go ahead on a given day because of unavoidable delays caused by the other side.  In far too many cases, I have heard expert witnesses being blamed for the delays.  In my experience, it’s not actually the fault of the experts very often.  In fact, we go out of our way to ensure we aren’t the cause of any delay (who wants to be held up in front of the Judge for the cause of a delay?) and if there is going to be a delay, we provide full reasons of the ’why’.  But I’ve been in court when a barrister has blamed me for a delay by saying I was weeks late providing him with my report when in fact I had only been instructed two days previously and the case had been going on for many months.  Sadly for the barrister he had forgotten I was sitting behind him and he was very sheepish when the Bench indicated that I might have something to say about it.

I understand that some of the Reform Bill has some of its ideas seated in the England & Wales Criminal Procedure Rules (CrPR).  I can tell you now the CrPR that are, amongst other things, supposed to make courts run more smoothly and cost-effectively have not had the desired effect in many instances.  I lost count of the number of times I attended court to be advised that either the Prosecutor had not had a chance to look at my report (because they were picking up the casefile for the first time that day — that relates to the functioning of the Crown Prosecution Service, but that’s a discussion for another day) or the report had not been served with enough time for the Crown to review it or put it to their expert.  The CrPR were supposed to then allow for the experts to discuss their reports (if both were even present at court) and prepare an agreed statement in which they listed the issues on which they agreed and the points in contention.  Sounds great, doesn’t it?  Theory’s a great thing but in reality I was sent home in about 50% of cases without so much as putting my backside on a court seat — court adjourned, huge cost to the tax payer, huge cost to the courts.

I know there is much discussion amongst lawyers about the Reform Bill is accepted; I wait with anticipation to see what rolls off the presses and how it actually pans out in real life.

[first published in Acquitak, the magazine of the Criminal Bar Association, March 2011]