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Law Reform Index

Unanimous Jury Verdicts

The Evening Standard
June 23 2004

Local lawyers unimpressed with looming changes
by David Eames

Proposed sweeping changes to the system of trial by jury have left two senior Palmerston North lawyers with serious misgivings.

The Criminal Proceedings Bill, introduced to Parliament yesterday and due for a first reading next week, calls for the abolition of unanimous jury verdicts, changes to the rules governing depositions hearings, changes to jury-selection procedures, and a revamp of the double-jeopardy law.

The changes could be law by year's end.

Defence lawyers Peter Coles and Fergus Steedman are concerned about changes that would see depositions hearings reduced to hand-up evidence only. Under the new proposals, special application would have to be made to a judge before an oral hearing - and cross examination - of evidence is made.

A depositions hearing is held before trial to test whether prosecution evidence is strong enough to go to a jury. It is almost a mini trial, where defence counsel often get the opportunity to cross-examine prosecution witnesses.

Mr Coles says the changes "go against what's most usually achieved at depositions".

"It is not that people are committed (to trial), but that the briefs of evidence that would comprise the prosecution in its written form are what a police officer expects the witnesses to say."

This evidence often changed "substantially" at depositions.

He also believes that the high percentage of committals currently going to trial from depositions (estimated at 92 to 93 percent of cases) ignores the fact many charges facing a defendant are substantially ammended, or even dropped, at depositions stage.

"I am not sure whether the protection in the bill allowing for oral hearing is sufficient to prevent those situations developing."

Mr Steedman says defence lawyers are already "pretty responsible" about depositions evidence.

"When depositions do take place, so that evidence is given orally, there's normally a good reason why that happens.

"Changing the law so that a defence lawyer has to make a special application disclosing the grounds for that application further chips away at the rights of accused people."

He is also concerned that a change to majority verdicts - 11 out of 12, rather than the current 12 out of 12 - will weaken the rights of accused people.

"Most defence lawyers would probably be able to live with majority verdicts if the Court of Appeal was to take a more flexible attitude than it does presently when hearing appeals against conviction arising out of a majority verdict.

"The Court of Appeal has always adopted a fairly conservative approach to any appeal against conviction based on the argument that the conviction is either unreasonable, or can not be supported having regard to the evidence.

"If their attitude to appeals based on those grounds were less rigid, then my concern about majority verdicts would be much lessened."

The proposed changes will go to a Parliamentary select committee.