You are here: Home Publications Previous publications 2004 Guidelines on the New Zealand Bill of Rights Act 1990 Section 25. Minimum standards of criminal procedure -

Section 25. Minimum standards of criminal procedure -

Section 25. Minimum standards of criminal procedure
Section 25(a) The Right to a Fair Trial
Section 25(b) Right to be tried without undue delay
Section 25(c) The right to be presumed innocent until proved guilty
Section 25(d) Right not to be compelled to be a witness or to confess guilt
Section 25(e) The right to be present at trial
Section 25(f) Right to examine and cross-examine witnesses

Section 25. Minimum standards of criminal procedure -

Section 25 of the Bill of Rights Act is as follows:

Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

  1. The right to a fair and public hearing by an independent and impartial court:
  2. The right to be tried without undue delay:
  3. The right to be presumed innocent until proved guilty according to law:
  4. The right not to be compelled to be a witness or to confess guilt:
  5. The right to be present at the trial and to present a defence:
  6. The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
  7. The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:
  8. The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
  9. The right, in the case of a child, to be dealt with in a manner that takes account of the child's age.

Policy Triggers: do I need to consider section 25?

Are you developing policy creating or amending

  • criminal offences?
  • criminal penalties?
  • criminal procedures?

OR

Are you developing policy of a regulatory nature that creates or amends offence or penalty provisions or policy that imposes disciplinary sanctions

and

  • The offences are, by their very nature, of a criminal character, or
  • The offence carries a penalty of imprisonment or a fine that is intended to indicate that the conduct was socially harmful?

If your response to any of these questions is "yes" then it is likely that the proposal you are working on will raise issues of consistency with section 25 and the rights contained in that section.

If, on the other hand you answer "no" to the above questions, but your policy still seeks to establish a regime with civil or administrative penalties, you should still go on to consider whether your policy is consistent with the right to the observance of the principles of natural justice, as found in section 27(1) of the Bill of Rights Act.

What every policy analyst needs to know about section 25

  • Section 25 is concerned with rights related to criminal procedure regardless of the seriousness of the offence.
  • Section 25 may also apply to regulatory offences.
  • The word "offence" in section 25 is not qualified by reference to "criminal activities" that are prosecuted through the ordinary criminal courts. [686]
  • Although criminal offending would appear to be the principal context within which the rights in section 25 would be applied, offences other than criminal offences (such as military offences) might come within the meaning of "offence" for the purposes of section 25. This is more likely to be the case if the resulting penalty (whether a fine or imprisonment) is punitive and/or intended to act as a deterrent to prevent future offending.
  • Section 25 applies to all stages of the process, from the pre-trial hearing to the completion of the appeal process. This is indicated by the words "in relation to the determination of the charge".

Methods to increase the compliance of your policy with section 25

In the development of any policy that may raise issues of consistency with section 25, consider:

  • The nature of the conduct that you are seeking to regulate or the harm that you are seeking to address via offences or penalties.
  • Whether the interests of persons charged with the offence are adequately recognised and taken into account.
  • The impact that the policy or practice may have on the public's perception of the way in which justice is administered.
  • If you are considering developing a new offence, you should refer to the Legislation Advisory Committee Guidelines (Guidelines on Process and Content of Legislation). This publication contains a useful chapter on criminal offences, which sets out other relevant considerations when developing offences. [687]

Related rights and freedoms

Many of the rights in section 25 are inter-related. You should therefore consider if more than one of the rights in section 25 is triggered by an issue of inconsistency. If you are developing policies or practices that you think might give rise to issues of compliance with section 25, you should also consider whether those practices are consistent with the other rights governing criminal offences, including:

  • the rights of persons arrested or detained (section 23)
  • the rights of persons charged with an offence (section 24)
  • retroactive penalties and double jeopardy (section 26).

Aside from those considerations, think about whether those policies or practices are consistent with:

  • the right to the observance of the principles of natural justice (section 27(1)).

Further discussion on the meaning of section 25

The word "offence" in section 25 is not qualified by reference to criminal activities. An offence is generally conceived of as being an act punishable under criminal law. Section 2 of the Crimes Act 1961 defines an offence to be "any act or omission for which any one can be punished under this Act or under any other enactment, whether on conviction on indictment or on summary conviction." It would appear that the courts in New Zealand, for the purposes of applying section 25, would generally interpret the word "offence" consistently with this definition as section 25 is primarily concerned with criminal procedure rights regardless of the seriousness of the offence. The Court of Appeal in Daniels v Thompson [1998] 3 NZLR 22 (CA) adopted the approach that the Canadian Supreme Court has taken in respect of the prohibitions against double jeopardy; that is the protection against double jeopardy only applies in respect of a further criminal prosecution for a criminal offence for which the accused has already been convicted or acquitted. [688]

However, there are indications that the Courts might not apply such a strict definition in respect of sections 24 and 25 of the Bill of Rights Act. The Court of Appeal in Drew v Attorney-General (No 2) (2001) 18 CRNZ 465 (CA) was asked to consider whether disciplinary offences in prisons were of sufficient character to meet the definition of an offence for the purposes of sections 24 and 25 of the Bill of Rights Act. The Court of Appeal did not reach a finding on this matter but left a clear signal to suggest that offences other than criminal offences might fall within the definition. [689] Military offences are likely to be considered to be an offence for the purposes of section 25.

Although criminal offending would appear to be the principal context within which the rights in section 25 would be applied, the courts in Canada have given extensive consideration to the equivalent provision in the Canadian Charter. The Canadian Supreme Court has stated that the ambit of section 11 of the Charter is slightly broader than just criminal offences - a matter could fall within the scope of the provision if, because of its nature it is a criminal proceedings or because a conviction in respect of the offence may lead to a penal consequence (for example, imprisonment or a substantial fine)

The discussion in these guidelines on the scope and application of section 24 of the Bill of Rights Act traverses these issues in more detail.

Key cases

Drew v Attorney-General (No.2) (2001) 18 CRNZ 465 (CA), 481; Drew v Attorney-General (No.2) (2001) 18 CRNZ 465 (CA), 481; R v Wigglesworth (1989) 2 SCR 541

History of the section

The White Paper

The rights set out in section 25 as minimum standards of criminal procedure were contained in Articles 16, 17, and 18 of the proposed Bill of Rights Act as it appeared in the White Paper. However, these were re-organised into four main sections - sections 23, 24, 25 and section 26 in the Bill of Rights Act without any discussion.

Section 25 (a) The Right to a Fair Trial

Section 25(a) of the Bill of Rights Act is as follows:

Fair trial
Everyone who is charged with an offence has, in relation to the determination of the charge, the right to a fair and public hearing by an independent and impartial court.

Policy Triggers: do I need to consider section 25(a)?

  • Are you developing policies or practices amending the way in which evidence is presented in a court or tribunal?
  • Are you developing special procedures to provide safeguards for witnesses when testifying in court?
  • Are you developing policy or practices that will regulate the way in which the media is able to report on trials or pending court cases or other hearings?
  • Are you developing policies or practices concerning the way in which juries are selected?
  • Are you amending policies or practices governing legal aid?
  • Are you seeking to amend the procedure allowing for a change of trial venue?
  • Are you developing policy that creates new offences or amends existing offence or penalty provisions allowing enforcement officers to issue infringement offence notices with "instant" fines for breaches of legislation?

If your response to any of these questions is "yes" then it is likely that the proposal you are working on will raise issues of consistency with section 25(a) and the right to a fair trial.

What every policy analyst needs to know about section 25(a)

Fair trial

  • Consideration of whether a person has received a fair trial involves an assessment of a range of factors, many of which are individually identified in section 25.
  • What constitutes fairness will require a weighing of a number of public interest factors including the rights of the accused and the victim.
  • The right is concerned with the quality of the trial process rather than the merits of the decisions of tribunals and courts.
  • An assessment of whether any trial is fair will need to consider whether the trial procedures strike an appropriate balance between the legitimate interests of the state in having allegations of criminal offending prosecuted and the broader public interest in ensuring that an accused receives a fair trial.

Public hearing

  • The right to a public hearing is in accord with the principles of open justice.
  • The right to a fair trial may require that certain information is withheld from the public.

Impartiality

  • Proceedings must be free from bias and the objective perception of bias.
  • Impartiality does not mean that the Court or jury would have to have no knowledge of the accused or the circumstances of the complaint.

Independence

  • The independence of tribunals and courts is needed to enable judges and others acting in a judicial capacity to act without fear of interference.
  • The independence of the tribunal and courts is to preserve the integrity of the decision-making process.
  • There are three essential ingredients pointing to the independence of courts and tribunals and those performing adjudicative functions. These are:
    • security of tenure for adjudicators;
    • financial security;
    • administrative autonomy.

Measures to achieve compliance

In the development of any policy that may raise issues of consistency with the right to a fair and public hearing or independence and impartiality of the court, consider:

  • Whether and to what extent the interests of the accused, the interests of the complainant, and the interests of the community are addressed.
  • Whether there is an appropriate balance between the legitimate interests of the state in having allegations of criminal offending prosecuted and the broader public interest in ensuring that an accused receives a fair trial.
  • The impact that the change in policy or practice may have on the public's perception of the way in which justice is administered.
  • Whether there are any persuasive reasons why a hearing should not be held in public.
  • Whether decision-makers and adjudicators are likely to be sufficiently impartial to conduct of proceedings.
  • Whether there are adequate opportunities for shifting the venue of the proceeding where it is considered that this is necessary to preserve the impartiality of the court.
  • Whether the policy will maintain the independence of the court or tribunal by preserving rules relating to tenure and appointment of adjudicators, or the way in which institutions are funded.

Related rights and freedoms

If you are developing policies or practices that you think might give rise to issues of compliance with the right to a fair trial, you should also consider whether those practices are consistent with the remaining rights governing criminal procedure in section 25(b) - (i). Aside from those considerations, think about whether those policies or practices are consistent with:

  • the right to freedom of expression (section 14);
  • the right to the observance of the principles of natural justice (section 27(1)).

Further discussion on the meaning of section 25(a)

What is a fair trial?

The idea of a fair trial is central to human rights doctrine, not only as a right in itself, but because without this one right, all the others are at risk; if the state is unfairly advantaged in the trial process, it cannot be prevented in the courts from abusing all other rights. [690]

Section 25(a) of the Bill of Rights Act reflects the common law principle of a right to a fair trial. What constitutes a fair trial cannot be stated with precision because what is "fair" will frequently depend on the facts of the particular case. [691] The right to a fair trial though, is concerned with the quality of the trial process rather than the merits of the decisions of tribunals and courts. [692]

Access to the courts

The right to a fair trial ensures that a person who is charged with an offence is able to contest the allegation before an impartial and independent decision-making body. The accused needs to be able to have access to the courts for this purpose. The courts in New Zealand do not appear to have considered whether section 25(a) provides a right of access to the courts. However, this matter has been considered in Europe. Although Article 6 of the European Convention contains no express right of access to a court, the Court in Golder v UK [693] held that it would be 'inconceivable' that Article 6 should not first protect that which alone makes it possible to benefit from such guarantees, namely access to a court. That is, a right to access to the courts, subject to reasonable limits, is the doorway through which the remaining rights of criminal procedure may be invoked. [694]

The European Court has said that while the right of access to a court might be subject to limitations-

...the final decision as to the observance of the convention's requirements rests with the court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with art 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ... [695]

Equality of arms

Whether section 25(a) also provides for equality of arms (that is, that a defendant in a criminal trial is placed on an equal footing with the prosecution) has been briefly considered by the courts in New Zealand. However, the courts have yet to consider whether it applies in the context of the right to a fair trial or the possible scope of the concept. [696]

The courts in Europe have considered that the principle of equality of arms between the defence and prosecution is an integral part of a fair trial. The Court in Brown v Stott [697] cited with approval the decision in Fitt v UK [698] which set out the reasoning for this as follows:

It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party...

An assessment of a range of factors

Despite this, the broad scope of section 25(a) remains evident as it is seldom referred to without consideration of at least one of the other rights in the section. Consideration of whether a person has received a fair trial involves an assessment of a range of factors. Many of these factors are individually identified in section 25. The European Commission on Human Rights has described the role of other rights in section 25 this way:

They exemplify the notion of a fair trial ... but their intrinsic aim is always to ensure, or to contribute to ensuring, the fairness of the criminal proceedings as a whole. The guarantees enshrined in [the equivalent of sections 25(b) - (i)] are therefore not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings.

It is also possible that factors other than those expressly included in section 25 (such as the failure to fully disclose relevant information prior to trial) may be considered if their presence or absence contributes to a risk of a miscarriage of justice or otherwise have an effect on the fairness of a trial.

Although it is therefore fair to say that, if one of the other rights in section 25 has been breached then it is likely that section 25(a) has also been breached, compliance with the individual rights contained in sections 25(b) - (i) may not always ensure fairness.

Public interest factors

The New Zealand caselaw suggests that what constitutes fairness will require a weighing of a number of public interest factors such as: the interests of the accused; the interests of the complainant; and the interest of the community to have "allegations of serious criminal activity prosecuted". [699] This weighing process can perhaps be best illustrated by way of an example. The right to cross-examine the witnesses for the prosecution is considered an important ingredient of a fair trial as it provides the defence and the court with an opportunity to test the veracity of the witnesses' evidence, particularly where the witnesses' evidence is crucial to the prosecution's case. [700] However, where a witness is unable to give evidence in court (for example if a witness dies before the proceedings take place), any written or recorded testimony by that witness may be submitted in evidence. The evidence may be admissible if the evidence is considered to be inherently reliable and trustworthy. [701]

Special procedures may be appropriate in cases where it is not in the public interest to require witnesses to testify in open court. However, such procedures may only be permissible where the defendant or his or her counsel can test that evidence. For example, witness screens or video tapes presenting the evidence of children under 17 years of age can be used in sex abuse cases. [702] There are also a number of common law mechanisms to protect witnesses and complainants in cases involving sexual offences. However, although the courts have employed these methods as a way of "getting to the truth" they have also been diligent in ensuring that the right of the accused to a fair trial is preserved. [703]

Why hearings should be public

Not only should justice be done, it should be seen to be done. The requirement for a hearing to be held in public is therefore in accord with the principles of open justice. [704] That the media and the public should have free access to the courts is implicit in the provisions of the Criminal Justice Act. [705]

Lord Diplock in Attorney-General v Leveller Magazine Ltd [706] set down the rationale for the requirement for open justice:

As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

Thomas J in Police v O'Connor [707] discussed the public nature of a trial in some detail. After citing the above statement from Lord Diplock he said: [708]

The conduct of proceedings in open Court, to which I would add the freedom of reporting such trials, provides an assurance to the wider public that justice is being administered openly and under public scrutiny...

In a real sense, the fact that the Courts are open to the public, and that proceedings may be freely reported in the media, is the method by which Judges remain answerable to the public.

There are, however, occasions where restrictions on the media or the public's ability to gain access to the courts or information before the courts is necessary to facilitate a fair trial. As Thomas J pointed out in O'Connor, [709] "the principle of open justice must be balanced against the objective of doing justice."

Public hearings and the presumption of innocence

Restrictions on the ability of the media to report matters coming before the courts may also be necessary to ensure that the court remains impartial and the presumption of innocence is maintained. [710]

Name suppression is possibly one of the more common examples of where the courts restrict the media's right of access to information. [711] Name suppression orders are available where the possible harm to the accused or to associates or family of the accused outweighs the advantages that accrue to the public as a result of disclosure. [712] The courts have been careful to ensure that the application of suppression orders do not accrue beyond those situations where there is evidence of special harm. [713] The Court of Appeal, when considering whether the name of an "extraordinarily successful businessman, community leader and philanthropist" should continue to be suppressed on account that the public interest in him was "undue", said: [714]

The Court cannot enter into assessment of whether media or public interest is appropriate or "undue"...in the absence of identified harm from the publicity which clearly extends beyond what is normal in such cases, the presumption of public entitlement to the information prevails. Any other approach risks creating a privilege for those who are prominent which is not available to others in the community and imposing censorship on information according to the Court's perception of its value.

Section 138 of the Criminal Justice Act confers on the courts the power to suppress a wide range of information if, in the court's view, suppression is necessary in the interests of justice, or public morality, or the reputation of any victim of any alleged sexual offence or offence of extortion, or the security or defence of New Zealand. [715]

Even then, where possible, the effect of section 25(a) demands that the interests of the public may still be able to be accommodated to the fullest extent practicable. [716] In Tukuafu v R Chambers J held that: [717]

In the interest of a fair trial, various prejudicial matters about an accused may quite legitimately need to be suppressed. Generally speaking, once a trial is over, the balance tilts the other way... [718]

It would therefore appear that the duration of name suppression would depend on the need for name suppression. If name suppression is needed in order to preserve the interests of a fair trial, then name suppression may be lifted at the completion of the proceedings. However, name suppression may be permanent where the interests of the parties to the proceedings need to be protected beyond the completion of proceedings (for example, to protect the identity of a victim of a sexual offence).

Impartial courts

Courts and tribunals are required to be impartial in order to ensure that they are free from bias. Courts and tribunals should therefore be independent from the other branches of government (see below). Adjudicators - including juries - are also required to be impartial. On a robust reading of the requirement that the court is impartial, the courts have said that such a requirement does not mean that the court or jury would have to have no knowledge of the accused or the circumstances of the complaint. Section 322 of the Crimes Act 1961, which is strengthened by the right to a fair trial, provides for a procedure allowing for a change of trial venue where a change of venue can be sought and granted because of concerns that media coverage may affect the impartiality of any jury. [719] However, the courts have observed that: [720]

It is not possible to obtain a human tribunal which is totally devoid of any preconceptions or ideas which are sometimes referred to as prejudice...including ones which may be subtle or inbred but, once aware of the possibility and conscious need to act independently and impartially, the Judge or juror is capable of weighing the relevant issues and reaching a just conclusion. In the view of our modern society there can be no guarantee that jurors will be unaware of the facts of a particular case.

Independence

Courts and tribunals are required to be independent from the other branches of government in order to preserve the appropriate constitutional checks and balances in our democracy.

The independence of courts and tribunals are likely to be determined with reference to the following: [721]

  1. tenure of office - judges and others serving in the courts and tribunals should only be able to be removed from their positions for reasons relating to their ability to perform the functions of the position;
  2. financial security - the level of remuneration provided to judges and other persons serving in a judicial capacity should be set by an independent body and at a sufficiently high level to minimise the possibility of corruption; and
  3. institutional autonomy - courts and tribunals should be able to independently arrange the functions of the institution.

Key cases

Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 R v Middleton 26/9/00, CA218/00; Lewis v Wilson & Horton [2000] 3 NZLR 546; R v L [1994] 2 NZLR 54; R v Metcalf (1996) 14 CRNZ 184; Police v O'Connor [1992] 1 NZLR 87; R v Barlow [1996] 2 NZLR 116; (1995) 13 CRNZ 503; 3 HRNZ 40; R v B [1995] 2 NZLR 172; Attorney-General v Leveller Magazine Ltd [1979] AC 440;Brown v Stott [2001] 2 WLR 817 (PC); Saunders v United Kingdom (1997) 23 EHRR 313, Reports 1996-VI

History of the section

The White Paper

The provision as originally proposed in the White Paper provided that everyone charged with an offence has the right to a fair and public hearing by a competent, independent, and impartial court.

The phrase "competent" was omitted from the final version of the Bill on the grounds that it was not considered to enhance the guarantee of independence and impartiality. Submissions were also made to the Select Committee that the word "competent" may enable arguments to be made on the basis of the calibre of the judge or jury dealing with a particular matter. [722]

Section 25(a) origins in international treaties and overseas legislation

Article 14(1) of the ICCPR provides that:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ... [723]

Article 10 of the UDHR provides that:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of their rights and obligations and of any criminal charge against him.

Section 11(d) of the Canadian Charter provides:

Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Article 6(1) of the European Convention on Human Rights states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ... [724]

Section 25(b) Right to be tried without undue delay

Section 25(b) of the Bill of Rights Act is as follows:

Undue delay
Everyone who is charged with an offence has, in relation to the determination of the charge, the right to be tried without undue delay

Policy Triggers: do I need to consider section 25(b)?

Although it is unlikely that the policy or practice that you are working on will, of itself, give rise to issues of inconsistency with this right, the implementation of this policy or practice might have practical implications for the courts. So:

  • Are you developing new practices or procedures for the management of caseloads in the courts?
  • Are you developing policies that may increase the workloads of the courts by, for example, creating a range of new criminal offences where the conduct has previously been dealt with by an administrative tribunal?
  • Are you developing policies or practices that may reduce the number of tribunals or limit the range of persons who are able to act in a judicial capacity?
  • Are you developing practices concerning procedures for the investigation and prosecution of offences?

What every policy analyst needs to know about section 25(b)

  • The right to be tried without undue delay seeks to protect interests other than the right to a fair trial, including the liberty interest of the accused, the preservation of public confidence in the administration of justice, and to prevent unnecessarily prolonged detention or control.
  • The right to be tried without undue delay applies once a person has been officially accused of an offence, and complements principles against abuse of process.
  • This right is narrower than the courts' power to discharge an accused person under section 347 of the Crimes Act 1961 or the courts' common law power to stay proceedings as an abuse of process. For example, both of those powers can be used if there is delay before or after a person is officially accused.
  • The New Zealand Courts have been willing to consider whether any delays in the pre-charge period have meant that delays in the post-charge period are "undue".
  • The New Zealand Courts have not yet considered whether this right includes the right to be sentenced within a reasonable time.
  • Delay may be caused by a variety of factors including actions by the Crown, the accused, the court system or the intricacies of the offence itself, but lack of resources may not be an acceptable explanation by itself for the delay.
  • While an accused person may waive his or her right to be tried without undue delay, their consent must be a fully informed decision and must be made express.
  • The prejudice that accrues to the accused as a result of the delay may be a decisive factor in determining whether a delay is undue, particularly where there is no one contributing factor causing the delay.

Measures to achieve compliance

If you are developing policy that will affect the caseloads of the courts or that relates to the management of caseloads, consider:

  • The additional funding needed to effectively implement the changes.
  • The implications for the courts if those policies are implemented without the required level of funding.
  • Whether penalties, other than those imposed by a court, are an adequate means of addressing the conduct that you are attempting to sanction.

If you are amending the laws relating to the granting of bail:

  • ensure that there are adequate protections built into the legislation to enable a person held on remand to apply at suitable intervals for bail; or
  • if the person is on bail, adequate opportunity to seek a review of bail conditions.

These measures may help minimise the effects caused by delays in holding proceedings.

Related rights and freedoms

When considering whether your policy or practice is consistent with section 25(b) you should also consider whether it is consistent with:

  • the right to a fair and public hearing by an independent and impartial tribunal (section 25(a));
  • the right to be presumed innocent until proven guilty (section 25(c));
  • the right to the observance of the principles of natural justice (section 27(1)).

Further discussion on the meaning of section 25(b)

In Martin v Tauranga District Court Casey J stated: [725]

... the early trial objective of para (b) is aimed at the perceived affront to human dignity caused by drawn-out legal process, as recognised over the centuries in those jurisdictions acknowledging the worth and liberty of the individual.

Objectives of section 25(b)

Section 25(b) serves three purposes. Firstly, it ensures that persons charged with an offence are afforded a fair trial. Delays in the trial process may lead to a miscarriage of justice as witnesses' memories of events fade or they no longer remain available to testify for whatever reason. Secondly, delays to the start of a trial may mean that an accused is held in custody or subject to stringent bail conditions for a longer period than necessary. And thirdly, section 25(b) seeks to preserve an individual's security or liberty interest. That is, the courts have acknowledged that lengthy delays may have an impact on an individual's sense of certainty about his or her future, even if they are not held in custody. The independence of the liberty interest was identified in Hughes v Police where Gallen J stated: [726]

The Courts have accepted the pressures and personal consequences arising from an extended delay on the person subjected to such delay, can of themselves amount to prejudice for the purposes of an abuse of process application, even where they are not seen as directly impinging upon the ability of the person concerned to defend him or herself.

These interests have been said to apply to corporations in the context of regulatory offences as well as individuals who are charged with what are known as truly criminal offences. [727]

The European Court of Human Rights has also included a fourth consideration: the desire to avoid delays which might jeopardise the effectiveness and credibility of the administration of justice. [728]

Scope of section 25(b)

Section 25(b) is said to be narrower in application than section 347 of the Crimes Act 1961 (which sets out the power of a court to discharge an accused) or the common law power of the superior courts to stay proceedings as an abuse of process. Undue delay in the context of s25(b) is concerned with delay after a charge is laid whereas the existence of delay before the charge can be considered in deciding whether there has been abuse of process. Pre-trial delay giving rise to an abuse of process is likely to give rise to consideration as to whether the accused would receive a fair trial. [729] The scope of section 25(b) is broader than what may otherwise be the case because the courts have been willing to consider whether any delays in the pre-charge period have meant that delays in the post-charge period are "undue". Also the word "charge" under section 25(b) has been defined by the courts to refer to "the first official accusation". [730]

The UN Human Rights Committee has also said that the guarantee in article 14(3)(c) of the ICCPR relates not only to the time by which a trial should commence, but also the time by which it should end and judgement rendered. While the issue of delays in sentencing has not been considered by the New Zealand courts, the Supreme Court of Canada has held that the right to be tried without unreasonable delay also includes the right to be sentenced within a reasonable time. [731] The Court considered that extending the scope of section (11)(b) of the Canadian Charter to delays in sentencing protected the same interests as trial delays.

Factors leading to the delay

In fixing the period of delay that is reasonable, the Supreme Court of Canada has distinguished four types (reasons) of delay: (1) delay that is inherent in the proceedings; (2) delay that is attributable to the Crown; (3) delay that is attributable to the accused; and (4) delay that is institutional or systemic to the court system. [732]

In R v Dodunski Nicholson J reviewed the state of law in New Zealand on section 25(b) and stated: [733]

What constitutes undue delay such as to breach an accused person's right under s25(b) will depend on all the circumstances. Aspects of the lapse of any significant time may be attributable to different matters. No one matter will necessarily be dominant. The overall length of time must be considered in light of the nature of the charges, whether the liberty of the accused has been curtailed, the steps taken in the proceedings, whether the accused has contributed to, or acquiesced in, the delay and the overall circumstances of the case.

When is delay undue?

The leading case on what constitutes undue delay in New Zealand is Martin. The Court of Appeal provided support for the reasoning in the Supreme Court of Canada decision in R v Morin. [734] The key considerations in considering whether a delay was undue should be:

  1. the length of the delay;
  2. waiver of time periods;
  3. the reasons for the delay, including:
    a. inherent time requirements of the case;
    b. actions of the accused;
    c. actions of the Crown;
    d. limits on institutional resources; and
    e. other reasons for delay, and
  4. prejudice to the accused.

Even though an accused may be said to have waived their rights to be tried without undue delay by agreeing to or requesting adjournments to proceedings, the courts have said that the waiver must be "clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights". [735] In other words, the consent to the waiver must be informed and made express.

Causes of the delay

The reasons for the delay are also significant. The courts are less likely to find that a delay in trial is undue where the trial raises matters of significant complexity or involve a lot of witnesses. The UN Human Rights Committee observed "that investigations into allegations of fraud may be complex and the author [needs to show] that the facts did not necessitate prolonged proceedings". [736] Any contribution that the accused makes to the delay is also of consequence as it suggests that the impact of the delay on the accused is not significant.

Although a delay caused by lack of resources is not of itself reason to find the delay was undue, [737] the United Nations Human Rights Committee has said that economic hardship or availability of resources does not excuse a State from full compliance with article 14 of the ICCPR , because they are minimum standards that all States have agreed to observe. The courts in New Zealand have also indicated that they will not necessarily accept a lack of resources as an adequate reason for explaining a delay. [738] However, the courts may take into consideration the steps that the Crown has taken to address causes of systemic delay when assessing whether any delay is unreasonable.

Prejudice caused by delay

The prejudice caused to the accused by the delay is likely to be of great significance. This is particularly the case where the accused is held in custody pending trial, or is subject to stringent bail conditions. [739]

Key cases

Martin v Tauranga District Court [1995] 2 NZLR 419; Hughes v Police [1995] 3 NZLR 443; R v Dodunski High Court, New Plymouth, T16/01, 7 June 2002; R v Haig [1996]1 NZLR 184; R v Morin [1992] 1 SCR 771; R v MacDougall [1998] 3 SCR 45; Procurator Fiscal, Linlithgow v Watson and Burrows; Her Majesty's Advocate v JK [2002] UKHRR

History of the section

The White Paper

The White Paper proposed that the equivalent provision to section 25(b) should contain reference to "undue" as opposed to "unreasonable" delay.

Section 25(b) origins in international treaties and overseas legislation

Article 14(3)(c) of the ICCPR states:

In the determination of any criminal charge against him, everyone shall be entitled in full equality, to be tried without undue delay.

Section 11(b) of the Canadian Charter provides that:

Any person charged with an offence has the right to be tried within a reasonable time.

Article 5(3) of the European Convention on Human Rights provides that:

Everyone arrested or detained shall be brought promptly before a judge or other authorised officer and shall be entitled to trial within a reasonable time or to release pending trial.

Article 6(1) of the Convention provides that:

In the determination of his civil rights or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Section 25(c) The right to be presumed innocent until proved guilty

Section 25(c) of the Bill of Rights Act is as follows:

Presumption of innocence
Everyone who is charged with an offence has, in relation to the determination of the charge, the right to be presumed innocent until proved guilty according to law.

Policy triggers: do I need to consider section 25(c)?

Are you drafting offence provisions that contain any of the following features?

Presumptions

  • Presumptions (presumed facts) where there is an evidential burden on the defendant to rebut the presumption and thereby put the burden of proof back on the prosecution.
  • Presumptions which impose a persuasive burden on the defendant to displace the presumption.
  • Irrebuttable presumptions, which cannot be displaced at all.

Reverse onus provisions

  • Where the offence provides that a qualification, proviso, excuse or other defence is to be established by the defendant.
  • Where there is a statutory defence relating to an element of the offence.
  • Where there is a statutory "absence of fault" defence which must be proved by the defendant on the balance of probabilities.
  • A summary offence that contains reference to a qualification, proviso or excuse.

Or, do you intend to:

  • Alter the criteria under which an accused person may apply for bail?
  • Amend the conditions under which a person can be released on bail?

If your answer is "yes" then your policy might give rise to issues of consistency with section 25(c) of the Bill of Rights Act.

  • Offence provisions that require the defence to disprove some element of the offence in order to avoid conviction are referred to as reverse onus provisions because they place the burden of proof on the defendant to free themselves from blame. As reverse onus provisions may lead an accused person to be convicted despite the existence of a reasonable doubt as to their guilt, they are likely to infringe against the presumption of innocence - the question is then whether these provisions are justifiable.

What every policy analyst needs to know about section 25(c)

  • Section 25(c) reflects the fundamental common law rule that every person has the right to be presumed innocent until proven guilty. The rule ordinarily requires that: (1) the burden of proving guilt rests with the state; (2) guilt should be proved beyond reasonable doubt and (3) the matter to be proved is guilt, which means that the offence should not ordinarily cover conduct that involves no moral fault. [740]
  • The most common statutory exceptions to the presumption of innocence include strict liability offences (reverse onus provisions), offences containing presumptions (of fact or law) and statutory defences to be proved by the defendant (see above).
  • Statutory limitations to 25(c) need to be justified in terms of section 5.
  • When interpreting an offence provision the courts will require the prosecution to prove all elements of the offence unless there is clear language to the contrary.
  • Summary offences that contain an exception, exemption (etc) in effect contain a reverse onus provision that places a burden of proof on the defendant by virtue of section 67(8) of the Summary Proceedings Act (see below).
  • Public welfare regulatory offence provisions that reverse the onus of proof are more likely to be justifiable where the penalty levels are at the lower end of the scale.
  • Evidential burdens and mandatory presumptions that require an accused person to displace some statutory presumption may infringe against the right even though the accused may not be required to establish their innocence to a particular standard of proof.
  • The presumption of innocence may necessitate the granting of name suppression where it is considered that there is a significant risk that an accused person would otherwise not receive a fair trial.
  • The presumption of innocence also requires that the accused person be released on bail unless there is sufficient public interest in that person being held in custody prior to trial.

Measures to achieve compliance

Where possible, offence provisions should be drafted so that they are consistent with the right to be presumed innocent until proven guilty. [741] Offences complying with the presumption require the prosecution to prove two things: (1) that defendant caused the prohibited act (actus reus) to take place and, (2) that he or she intended the act, or was reckless as to whether it would occur or knew what the consequences of their action would be (mental element or mens rea). [742] In other words the prosecution must prove the prohibited act and an associated guilty mind.

In general terms, offence provisions are likely to infringe against the presumption of innocence where the prosecution is not required to prove the actus reus and mens rea elements of the offence beyond all reasonable doubt. This is because a defendant's failure to discharge an onus of proof or rebut an evidential burden or prove an absence of fault will permit their conviction even where doubt may exist as to their guilt.

An offence provision that creates any departure from the presumption of innocence requires justification under s.5. If you are developing such provisions, there are a number of factors that you need to consider:

  1. the nature and context of the conduct that you are attempting to regulate;
  2. the reason why you want the defendant to provide evidence or prove on the balance of probabilities that they were not at fault;
  3. the ability of the defendant to exonerate themselves; and
  4. the penalty level that you wish to impose.

These factors are considered in turn below.

1. The nature and context of the conduct that you are attempting to regulate.

Public Welfare Regulatory Offences

The Courts have generally accepted that there is a distinction between "truly criminal offences" and offences that are considered to be in the realm of "public welfare regulatory offences" ("regulatory offences"). [743]

The distinction was explained by Cory J in Wholesale Travel this way: [744]

The objective of regulatory legislation is to protect the public or broad segments of the public (such as employees, consumers and motorists, to name but a few) from the potentially adverse effects of otherwise lawful activity. Regulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. (emphasis added)

There is an argument that this distinction is relevant in considering the right to be presumed innocent. The basic tenet of the argument is that a regulatory regime exists to protect the wider values of the public and this important objective may provide some justification for a reverse onus of proof.

Licensing Regime offences

A related argument may be put forward in relation to licensing regimes which contain offences for non-compliance. The argument goes that those who choose to participate in the licensed regime (e.g. transport service licensing) have knowingly accepted the enhanced standards of behaviour required of them and the reverse onus of proof is therefore justified. This "licensing" argument was described by Cory J in Wholesale Travel as: [745]

...rest[ing] on the view that those who choose to participate in regulated activities have, in so doing, placed themselves in a responsible relationship with the public generally and must accept the consequences of the responsibility. Therefore, it is said, those who engage in regulated activity should ... be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere.

If you intend to strictly regulate certain types of activity, particularly commercial activity (such as the sale of alcohol, tobacco or motor vehicles) then it is more likely to be justifiable to require participants in that field to provide explanations as to why they have infringed the specific conditions therein.

Similarly, persons who participate in activities that carry with them risks to public health and safety or take place in a situation of significant social or public interest, then that person should be expected to meet certain expectations of care. The argument runs that if they are unable to meet those predetermined standards, then they should be required to show why they were not at fault.

Truly criminal offences

Criminal offences are those offences that involve activity which contains an element of moral fault and that are aimed at punishing wrongdoing rather than preventing future harm. Notwithstanding the rule of the presumption of innocence, criminal provisions may be drafted containing statutory limitations on s25(c) in some circumstances by, for example, containing presumptions of fact or a statutory defence to be proved by the defendant. In assessing whether such provisions are a justified limitation on the section 25(c) right, the courts have considered the nature and context of the specific offences and whether the presumption is relevant, rational and proportionate to the objective served by the offence provision itself.

By way of example, legislation that provides for the prevention of misuse of drugs frequently include provisions that impose a burden on defendants to disprove an intention to supply where the defendant has been found in possession of a quantity of the prohibited drug. The Canadian Supreme Court in R v Oakes [746] considered such a provision in the Narcotic Control Act which provided that, upon possession of drugs, a defendant is required to prove that she or he was not trafficking the drug. While the court held that the objective of the law - protecting society from the 'grave ills' of drug trafficking - was laudable, the provision was not rationally connected to that objective. This was because the reverse onus provision operated once it was proved that the accused possessed any quantity of the drug. By comparison, the New Zealand Court of Appeal considered that a similar provision in the Misuse of Drugs Act, which imposed a burden on the defendant to disprove an intention to supply where the defendant had been found with more than a specified quantity of drug, was consistent with section 25(c). This is because the specified quantity of the drug was viewed as a rational threshold to impose. [747]

2. The reason why you want the defendant to provide evidence or prove on the balance of probabilities that they were not at fault.

Is there something about the nature of the offence that makes it impracticable for the prosecution to prove the traditional elements of the offence (mens rea and actus reus)?

Although the Court of Appeal has noted that in the case of regulatory/licensing offences it may be easier for the defendant to point to information explaining why they acted in a particular manner, [748] the same could be said for all criminal offending. After all, the person accused of murder knows, better than anyone, whether they intended to kill the victim or not. For this reason, simply categorising an offence as a regulatory or licensing offence is not sufficient justification for a reverse onus or presumptive offence.

However, where the offence turns on a particular matter that is peculiarly within the knowledge of the defendant, there may be reasons why it is reasonable to expect the defendant to either point to it or prove it. The conduct and the context within which the alleged offending took place are particularly relevant factors to consider as is the availability of exculpatory evidence.

Provisions requiring a defendant to simply provide evidence (known as an evidential onus) in reply to the prosecution case rather than actually prove a fact or defence (a persuasive onus) will be easier to justify. [749] This is because it will be easier for the defendant to discharge the requirement in the first instance. However, such a provision may still be inconsistent with s25(c) if the effect of it is that, in the absence of any evidence from the defendant, they can be convicted without the Crown proving all elements of the offence in the usual way.

3. The ability of the defendant to exonerate themselves.

You may assume that it will be easy for defendants to explain why they behaved in a particular manner or to provide relevant evidence to support a claim that they acted without fault. However, this is not always the case. It is not always possible for the defendant to produce documents or other objectively assessable information that can be used as evidence. A reverse onus or presumption provision may not be justifiable if it is going to be impracticable or impossible for the defendant to make out a valid defence.

So, before deciding that a defendant should be required to provide or prove particular evidence, consider whether the relevant information or evidence would in fact be practically available to him or her. How easy would it be for him or her to obtain this information? How complex is the material?

4. The penalty level that you wish the courts to impose.

As a general principle, offences where the prosecution is not required to prove both the actus reus and the mens rea should carry penalties at the lower end of the scale for that type of offence. As imprisonment over 1 year is usually a penalty associated with indictable offences, offences with terms of imprisonment for longer periods are generally considered to require the prosecution to prove all the elements of the offence beyond reasonable doubt.

The Canadian Supreme Court in R v Wholesale Travel Group [750] has considered that imprisonment for a regulatory offence is justifiable as the stigma associated with imprisonment for a regulatory offence is less than that for a truly criminal offence. However, while an offence that reverses the burden of proof and contains a penalty of a term of imprisonment may, in limited situations, be justifiable, the penalty must be clearly associated with the seriousness of the offence and the importance of the objective to which the offence is aimed.

Related rights and freedoms

When considering whether the policy or practice that you are working on complies with the right to be presumed innocent, also consider:

  • the right to freedom of expression (section 14);
  • the right of every person charged with an offence to be released on reasonable terms and conditions unless there is just cause for continued detention (section 24);
  • the right to a fair trial (section 25(a));
  • the right to the observance of the principles of natural justice (section 27(1)).

Further discussion on the meaning of section 25(c)

The common law principle

Section 25(c) confirms the basic common law principle that it is for the prosecution to prove all the elements of the offence, and thereby the guilt of the accused, beyond reasonable doubt. The obligation requires the prosecution to prove, beyond reasonable doubt, that the defendant committed the prohibited act (by act or omission) with a particular state of mind (i.e. intentionally, deliberately, knowingly or recklessly).

The principle was explained in Woolmington v DPP [751] by Viscount Sankey:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject ... to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner ... the prosecution has not made out its case and the prisoner is entitled to an acquittal ... the principle that the prosecution must prove the guilt of the prisoner is part of the common law and no attempt to whittle it down can be entertained.

The decision in Woolmington emphasises that the presumption of innocence ought not to be eroded as a common law doctrine. Section 25(c) of the Bill of Rights Act serves to protect against the erosion of the presumption of innocence by statute.

Statutory exceptions to the presumption of innocence

There a number of ways in which exceptions to the principle in Woolmington may arise. This is because both the common law rule and its corollary provision in section 25(c) can be overriden by other statutory provisions. [752]

However, the courts have indicated that the statutory scheme should make it clear if the onus is to be reversed. The Legislative Advisory Committee points out for example that even though section 67(8) Summary Proceedings Act makes it clear that summary offences [753] that contain a reverse onus provision place a burden of proof on the defendant, the issue of who bears the burden of proof for indictable offences [754] is less clear.

Statutory exceptions and their interpretation

It has been said that it is fundamental to New Zealand's criminal law that the onus of proof remains throughout on the Crown. [755] Generally speaking every offence establishes a level of blame or culpability. [756] However, as noted above, offence provisions can be framed so that they require different types of proof. In this respect there are three main types of offence provision.

A truly criminal offence requires the prosecution to prove two things: (1) that the defendant caused the prohibited act (actus reus) to take place and, (2) that he or she intended the act, or was reckless as to whether or not it would occur or knew what the consequences of their action would be (mens rea). [757] In other words the prosecution must prove the prohibited act and an associated guilty mind. It is on the basis of the guilty mind that the moral culpability of a criminal act accrues.

Public welfare/regulatory offences typically require proof only of the prohibited act or state of affairs. Proof of the mental or fault element is not necessary but if the defendant can show that he or she wasn't at fault then liability is avoided. These offences are normally called strict liability offences.

Absolute liability offences occur where even proof of an excuse or absence of fault will not remove liability from a defendant. Once the prosecution has proved the act beyond reasonable doubt the entire offence is proved. [758]

Where the intent of Parliament as to the type of offence intended is unclear, the courts will frequently return to first principles for interpretation. For present purposes these may be stated quite shortly as:

... a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted. [759]

The New Zealand Court of Appeal [760] has observed that in the process of determining where a statutory provision requires the burden of proof to lie, consideration should be given to what is an eminently fair outcome. [761]

Reverse onus provisions

On occasions, statutory provisions will clearly require the accused to prove or rebut a particular fact, defence, excuse or element of the offence. In such cases the burden of proving guilt switches from the prosecution to the defence once the prosecution has proved that the accused has acted or omitted to act in contravention of a statutory requirement. This is known as a reversal of the onus of proof and is inconsistent with the presumption of innocence in section 25(c) of the Bill of Rights Act.

As noted above, reverse onus provisions include offences where:

  • there is a statutory "absence of fault" defence which must be proved by the defendant on the balance of probabilities;
  • there is a statutory defence relating to an element of the offence;
  • a summary offence contains reference to a qualification, proviso or excuse covered by s67(8) Summary Proceedings Act; or
  • an indictable offence provides that a qualification, proviso, excuse or other defence may be established by the defendant.

Interpretation of reverse onus provisions

The Canadian Supreme Court [762] considered the interpretation of a reverse onus provision in a truly criminal offence provision and the majority held that:

In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in section 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue [emphasis added].

On that basis the Supreme Court confirmed that the provision requiring the defendant to disprove an important element of the offence violated the presumption of innocence without sufficient justification and was therefore invalid.

The Canadian Supreme Court considers that the approach established in R v Oakes requires offences to be viewed holistically. [763] In Whyte [764] the court further explained that the specific factor the defendant needed to prove or disprove (i.e essential element, a collateral factor, an excuse or a defence) was not important. The key consideration was the impact that the presence or absence of this factor would have on the verdict. [765] The right to be presumed innocent is infringed where the accused, while being able to raise doubt as to their fault is unable to prove absence of fault to the required standard. They are thereby liable to be convicted where doubt as to their guilt remains.

Summary offences

The interpretation of summary criminal offences is affected by s 67(8) of the Summary Proceedings Act 1957 ("SPA") which provides that:

Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany the description of the offence in the enactment creating the offence, may be proved by the defendant, but, ... need not be negatived in the information, and, whether or not it is so negatived, no proof in relation to the matter shall be required on the part of the informant.

Section 67(8) of the SPA has traditionally been interpreted to place a burden of proof on the defendant. However, notwithstanding s67(8) there have been some cases where the Court has used s25(c) to interpret summary offence provisions to put only an evidential burden on the defendant. [766] This means that the prosecution retains the overall burden of proving all elements of the offence (see below).

Burden of proof or evidential burden?

Although a number of statutory provisions appear to require the accused to prove a total absence of fault on his or her part, these offence provisions may simply require the accused to present evidence pointing to the existence of some doubt as to their guilt. This is called an evidential burden (in contrast with a burden of proof) and may not infringe s25(c).

For example, section 29 of the Summary Offences Act provides that "every person [commits an offence] who is found without reasonable excuse ... in a building ...". The High Court [767] noted that the phrase "reasonable excuse" must have a wider meaning than a purely "lawful excuse", and rejected the argument that an excuse under the section would be an "excuse" within the meaning of section 67(8) of the Summary Proceedings Act 1957. Hammond J considered that if that were so, a defendant would face the burden of establishing the defence on the balance of probabilities. However, Hammond J was inclined to think that, in the form the legislation is now, it is for the defendant to raise an evidentiary basis for the defence, but it is the prosecution that ultimately has the persuasive burden. The Court noted that, having regard to section 6 and 25(c) of the Bill of Rights Act, such an interpretation was to be preferred. [768]

The House of Lords in R v Lambert [769] adopted a similar approach when it observed that even if it appeared obvious that a statutory offence provision imposed a legal burden on the accused, the provision should be read down to impose only an evidential burden. Such an approach should be adopted wherever practicable so as to give effect to human rights principles. [770]

Public welfare regulatory offences [771]

The approach to the interpretation of reverse onus provisions in public welfare regulatory offences was discussed by the Court of Appeal in MacKenzie v Civil Aviation Department. [772] In that case the Court of Appeal held that regulatory offences will ordinarily permit a defence of 'absence of fault', with the burden of proving the absence of fault resting with the defendant. The court accepted that a reversal of the onus of proof can be justified notwithstanding the presumption of innocence. The Court discussed the approach of the Canadian Supreme Court in R v City of Sault Ste Marie [773] in relation to recognising public welfare offences as a new category of offences and stated:

Courts must be able to accord sufficient weight to the promotion of public health and safety without at the same time snaring the diligent and socially responsible. The principle of English criminal law, that the burden of proof of a requisite mental state rests on the prosecution, is not whittled down where, in matters of public welfare regulation in an increasingly complex society, the defence of due diligence is allowed because it is recognised that the price of absolute liability is too high ... the defendant will ordinarily know far better than the prosecution how the breach occurred and what he had done to avoid it. In so far as the emphasis in public welfare regulations is on the protection of the interests of society as a whole, it is not unreasonable to require a defendant to bear the burden of proving that the breach occurred without fault on his part...

Following MacKenzie, some public welfare regulatory offences reverse the onus of proof by requiring the defendant to prove on the balance of probabilities that he or she was without fault, once the prosecution has proved beyond reasonable doubt that the accused committed the offence (the actus reus). [774] These provisions appear inconsistent with the presumption of innocence because there is a risk that the accused may be convicted despite a reasonable doubt about his or her guilt.

Consideration will therefore need to be given to the relevant factors outlined above, namely the: nature and context of the offence, penalty level, ability of the defendant to exonerate themselves, and the specific reason that the prosecution should not be required to prove all elements of the offence.

Presumptions

Presumptions are a further form of statutory exception to the rule in Woolmington. The Supreme Court of Canada in R v Downey identified three types of presumptions that require proof of a basic fact: [775]

Permissive inferences: Where the trier of fact is entitled to infer a presumed fact from the proof of the basic fact, but is not obliged to do so. This results in a tactical burden where the accused may wish to call evidence in rebuttal, but is not required to do so.

Evidential presumption: Where the trier of fact is required to draw the conclusion from proof of the basic fact in the absence of evidence to the contrary. This mandatory conclusion results in an evidential burden whereby the accused will need to call evidence, unless there is already evidence to the contrary in the Crown's case.

Presumption with persuasive burden: Similar to evidential burdens except that the evidential fact must be disproved on a balance of probabilities instead of by the mere raising of evidence to the contrary.

The courts in New Zealand have considered that offence provisions containing permissive inferences may not necessarily give rise to issues of consistency with section 25(c) if they do not detract from the requirement of the prosecution to prove that the accused is guilty beyond reasonable doubt. [776]

Presumptions that put an evidential burden on the defendant are more likely to be inconsistent with s25(c). This is particularly so when the presumption leads to acceptance of a fact that is an element of the offence. In Downey, the Supreme Court in Canada held that mandatory presumptions requiring the accused to provide evidence raising reasonable doubt as to the existence of a fact may give rise to issues of consistency with the presumption of innocence. Such presumptions work on the basis that proof of the existence of one fact - for example being found late at night carrying a bag of tools - is proof of the existence of an element of the offence - the intention to commit a burglary - unless the accused is able to provide evidence to the contrary. The Court said in Downey that such presumptions may, in situations where the defendant is unable to adduce sufficient evidence to rebut the presumption, lead to the conviction of a person even though reasonable doubt exists as to their guilt.

Nevertheless, not all presumptions will be inconsistent with the right to be presumed innocent in s25(c). The issue of consistency will depend in each situation on the particular drafting of the offence provision and the relevance and proportionality of the presumption to the offence and the overall objective of the act.

The European Court views persuasive presumptions this way: [777]

Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law ... Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.

In considering the relative merits of evidential burdens or persuasive presumptions, Lord Hope in R v DPP, ex p Kebilene stated: [778]

The cases show that, although art 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses, whether they be evidential (presumptions of fact) or persuasive (presumptions of law). In each case the question will be whether the presumption is within reasonable limits.

It seems therefore that whether or not the presumption can be justified depends on the relevance and rationality of the presumption in the context of the particular offence provision.

Other matters

The right to be presumed innocent also appears in other contexts, such as name suppression and bail applications.

Name suppression

Suppression of the identity of the accused prior to trial or retrial may be necessary in order to protect the right to be presumed innocent. However the presumption of innocence cannot of itself displace the principles of freedom of expression and the right to an open trial. [779] The application of section 25(c) in this context complements the right of the accused to receive a fair trial. However, it would appear that the principles of open justice would support the presumption allowing the publication of an individual's identity unless there is evidence of harm accruing to the accused or others resulting from that publicity. [780]

The Court of Appeal, when reviewing the leading caselaw on suppression orders and in applying the principles required when considering whether to grant or revoke a suppression order, said: [781]

The public's right to receive information, the principle of open justice, the type of information in question, its public importance and interest, its likely circulation, methods of diluting its effect on the mind of potential jurors, the presumption of innocence, and other issues are to be balanced against its prejudicial effect. But once this exercise has been completed and it has been determined that there is a significant risk that the accused will not receive a fair trial, the issue ceases to be one of balancing ...there is no room in a civilized society to conclude that, 'on balance', an accused should be compelled to face an unfair trial.

Bail applications

The Court of Appeal has also considered the relevance of the presumption of innocence to the application of bail laws. In noting the right under section 24(b) of the Bill of Rights Act that every person charged with an offence shall be released on reasonable terms and conditions unless there is just cause for continued detention, the Court of Appeal has said: [782]

The seriousness of the charge faced will not in itself provide a justification for refusal of bail. Refusal can be justifiable only when the prosecution demonstrates not merely that the charge is a serious one but also that there is something additional which favours detention of the accused in the public interest, and that combination of factors is not outweighed by considerations favouring bail. The societal interest must be unable to be met by the granting of bail upon terms as to residence, reporting to police, curfew, non-association, travel restrictions and the like.

Having noted that the charge faced is serious, the Court will need to be satisfied concerning the strength of the prosecution case for it would be wrong in principle to cause an accused to be held in custody pending trial if the case appears weak.

Considering the circumstances when the courts will not consider bail, the Court of Appeal, in implicitly taking into account the right to be tried without undue delay, said: [783]

Someone who has pleaded not guilty must be presumed to be innocent of the charged offending until proven guilty according to the law ... Such a person also enjoys the benefit of section 24 [of the Bill of Rights Act] which requires that there be 'just cause' for continued detention ...

Another important consideration is the likely length of the detention before trial. Where it is unlikely to occur within a few months the delay will be a factor favouring the granting of bail but is not in itself determinative...

It is the task of the Judge hearing a bail application to balance these various factors, giving due weight of course to the Bill of Rights guarantees, and to form a judgment upon whether bail should be granted and, if so, the conditions to attach to it.

It is therefore clear that, where possible, the Courts need to apply the provisions of the Bail Act 2000 consistently with not only section 24(b) of the Bill of Rights Act, but also sections 25(b) and 25(c) of that Act.

Pre-trial conduct

The courts have said that the right to be presumed innocent does not extend to pre-charge conduct even where it is alleged that the police have maliciously pursued a prosecution. The scope of the right is restricted to the trial process and does not extend to the conduct of the investigation. [784]

Key cases

Civil Aviation Authority v MacKenzie [1983] NZLR 78; Millar v Ministry of Transport [1986] 1 NZLR 660; R v Rangi [1992] 1 NZLR 385; Prockter v R [1997] 1 NZLR 295; Lewis v Wilson & Horton [2000] 3 NZLR 546; R v Burns (Travis) [2002] 1 NZLR 387; B v Police (No.2) [2000] 1 NZLR 31; A v Wilson & Horton 6 HRNZ 106; R v City of Sault Ste Marie (1978) 85 DLR (3d) 161; R v Whyte [1988] 2 SCR 3; R v Wholesale Travel Group [1992] 84 DLR (4th) at 213; R v Oakes (1986) 26 DLR (4th) 200; R v Downey [1992] 2 SCR 10; Woolmington v DPP [1935] AC 462 (HL);R v Lambert (Steven) [2001] UKHL 37; [2001] 3 WLR 206; [2001] 3 All ER 577, HL; R v DPP, ex p Kebilene [1999] 4 All ER 801; Salabiaku v France (1988) 13 EHRR 379

History of the section

The White Paper

Section 25(c) of the Bill of Rights Act appears in the same form as it was proposed in the White Paper.

Section 25(c) origins in international treaties and overseas legislation

Article 14(2) of the ICCPR provides:

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

Article 6(2) of the European Convention on Human Rights states:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Section 11(d) of the Canadian Charter provides:

Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

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Footnotes:

  1. See the earlier discussion of "what is meant by charged with an offence" at pages 231-234 of these guidelines.
  2. The latest version can be found on the Internet at http://www2.justice.govt.nz/lac/
  3. See, for example, R v Wigglesworth (1989) 2 SCR 541. 2
  4. Drew v Attorney-General (No.2) (2001) 18 CRNZ 465 (CA), 481.
  5. David Robertson (1997), A Dictionary of Human Rights, Europa, p77.
  6. There are a number of statutory provisions directed at providing for a fair hearing, see section 67 of the Summary Proceedings Act, the Juries Act and Jury Rules, and sections 138 to 140 of the Criminal Justice Act.
  7. R v Barlow [1996] 2 NZLR 116; (1995) 13 CRNZ 503; 3 HRNZ 40. Though the issue of whether the accused is able to plead, understand the nature or purpose of the proceedings and to communicate with counsel for the purpose of conducting a defence may be relevant, see R v Duval, High Court Whangarei T 84/94, 2 August 1995, Thomas J.
  8. Golder v UK (1975) 1 EHRR 524 at 535-536 (para 35).
  9. Golder v UK (1975) 1 EHRR 524 at 537 (para 38).
  10. Tinnelly & Sons Ltd v UK (1998) 4 BHRC 393 at 415 (para 72).
  11. R v Heemi (1998) 16 CRNZ 221, 228. This issue is discussed in further detail at pages 298, 303, and 305 of these guidelines.
  12. Brown v Stott [2001] 2 WLR 817 (PC), per Lord Bingham at 827.
  13. Fitt v UK (2000) 30 EHRR 480 at 510-511.
  14. R v B [1995] 2 NZLR 172, 187.
  15. The complainant in R v Metcalf (1996) 14 CRNZ 184 resided overseas and did not wish to return to give evidence against the accused. The court held that her statement was inadmissible because the accused would not be given an opportunity to cross-examine the witness.
  16. In contrast to the decision in Metcalf, the Court of Appeal R v L [1994] 2 NZLR 54 held that the deceased's evidence was admissible. There was no information before the Court to suggest that cross-examination would have affected the reliability of the deceased's testimony.
  17. Sections 23C - 23I of the Evidence Act 1908; section 158CA of the Summary Proceedings Act 1957 and the Evidence (Videotaping of Child Complainants) Regulations 1990
  18. R v Lewis [1991] 1 NZLR 409,412R v L (D.O) [1993] 4 SCR 419; R v Levogiannis [1993] 4 SCR 475. See also the New Zealand Law Commission's Preliminary Paper No.26 (1996) The Evidence of Children and Other Vulnerable Witnesses.
  19. See the Concluding Comments of the Human Rights Committee in Campos v Peru (577/94) where the committee was critical of a system that allowed for secret trials.
  20. Section 138(1) of the Criminal Justice Act 1985
  21. Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449-450
  22. Police v O'Connor [1992] 1 NZLR 87
  23. Police v O'Connor [1992] 1 NZLR 87, 95
  24. Police v O'Connor [1992] 1 NZLR 87, 96.
  25. Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563.
  26. See section 140(1) of the Criminal Justice Act.
  27. Section 138(8) of the Criminal Justice Act.
  28. Lewis v Wilson &Horton [2000] 3 NZLR 546, 563.
  29. Lewis v Wilson &Horton [2000] 3 NZLR 546, 563.
  30. Section 138(2) of the Criminal Justice Act 1985.
  31. Sections 138(2) and 140(2) - (4) of the Criminal Justice Act, see also O'Connor
  32. Tukuafu v R High Court, Auckland, A205/01, 17 December 2001
  33. See also Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563, 569 where the court said "where there is a conflict between fair trial values and freedom of expression... the latter may be suspended or delayed until a trial is completed".
  34. R v Middleton 26/9/00, CA218/00.
  35. R v Sanders [1994] 2 NZLR 568, 574
  36. For a more complete discussion of these points see Paul Rishworth (2003) "Minimum Standards of Criminal Procedure for Trial, Sentencing and Appeals" in The New Zealand Bill of Rights, OUP, pp 671-673
  37. Interim Report of the Justice and Law Reform Select Committee Inquiry into the White Paper - A Bill of Rights for New Zealand (1986-87), p 61.
  38. Article 14(1) goes on to self-define the possible limits to the right.
  39. Article 6(1), like Article 14(1) of the ICCPR, defines the scope of the right with reference to access by the media and the public.
  40. Martin v Tauranga District Court [1995] 2 NZLR 419, 429.
  41. Hughes v Police [1995] 3 NZLR 443, 453.
  42. R v CIP [1992]1 SCR 843. It applies to extradition cases Poon v Commissioner of Police [2000] NZAR 70.
  43. Considered in Procurator Fiscal, Linlithgow v Watson and Burrows; Her Majesty's Advocate v JK [2002] UKHRR.
  44. R v O [1999] 1 NZLR 347,350.
  45. Martin v Tauranga District Court [1995] 2 NZLR 419, 420.
  46. R v MacDougall [1998] 3 SCR 45.
  47. R v Smith [1989] 2 SCR 1120.
  48. R v Dodunski High Court, New Plymouth, T16/01, 7 June 2002.
  49. R v Morin [1992] 1 SCR 771 - note that section 11(d) of the Canadian Charter refers to a test of "unreasonableness" rather than considering what is undue.
  50. R v Morin (1992) 12 CR (4th) 1 (SCC), 15.
  51. Wolf v Panama (289/88).
  52. See R v Martin [1995] 2 NZLR 419, at 425, 431, and 434.
  53. R v Haig [1996] 1 NZLR 184, 193. See also, Martin at 421 where Cooke P made the same point. However, Cooke P went on to make the observation that, where the court is aware that the government is conscious of a problem and is taking prompt steps to deal with it, the courts would be reluctant to stay proceedings on the ground of systemic delay only.
  54. Martin v Tauranga District Court [1995] 2 NZLR 419.
  55. For an overview of the general principals of criminal law and the classification of offences see Chapter 12 of the LAC Guidelines or Adams on Criminal Law Vol 1 Commentary on section 20 of the Crimes Act 1961 and Vol 2, Chapter 2.1 Evidence: Evidence in Criminal Cases
  56. For general guidance on developing offence provisions in legislation, see Chapter 12 of the LAC Guidelines.
  57. A true crime is able to be distinguished from other types of offences by means of the statutory context within which it appears, the penalty level, or the stigma associated with the conviction for the behaviour.
  58. R v City of Sault Ste Marie (1978) 85 DLR (3d) 161, 170-171, confirmed in Civil Aviation Authority v MacKenzie [1983] NZLR 78.
  59. R v Wholesale Travel Group (1992) 84 DLR (4th).
  60. R v Wholesale Travel Group (1992) 84 DLR (4th) at 213.
  61. R v Oakes [1986] 1 SCR 103.
  62. R v Phillips [1991] 3 NZLR 175 (CA).
  63. Civil Aviation Authority v MacKenzie [1983] NZLR 78.
  64. Refer to further discussion of the interpretation of provisions and types of presumptions below.
  65. R v Wholesale Travel Group (1992) 84 DLR (4th) at 219.
  66. Woolmington v DPP [1935] AC 462 (HL), 481.
  67. See discussion on section 4.
  68. Summary offences are criminal offences that can be heard in the District Court without a jury trial.
  69. An indictable offence is, for these purposes, any offence in the Crimes Act or other enactment that is of a more serious nature than a summary offence. Conviction of an indictable offence may lead to the imposition of heavier penalties than summary offences.
  70. R v Rangi [1992] 1 NZLR 385, 390.
  71. Millar v Ministry of Transport [1986] 1 NZLR 660.
  72. A true crime is able to be distinguished from other types of offences by means of the statutory context within which it appears, the penalty level, or the stigma associated with the conviction.
  73. For an overview of the general principals of criminal law and the classification of offences see Chapter 12 of the LAC Guidelines or Adams on Criminal Law Vol 1 Commentary on section 20 of the Crimes Act 1961 and Vol 2, Chapter 2.1 Evidence: Evidence in Criminal Cases
  74. Sweet v Parsley [1970] AC 132; [1969] 1 All ER 347, per Lord Reid
  75. Civil Aviation Authority v MacKenzie [1983] NZLR 78
  76. The combined effect of section 5 and section 25(c) are likely to be influential in making this assessment. To see how the courts have applied section 6 and 25(c) see R v Rangi [1992] 1 NZLR 385 and Grey v Police (Hammond J High Court, Hamilton, AP65/01, 31 October 2001). The High Court in Grey was considering the correct interpretation of section 29 of the Summary Offences Act.
  77. R v Oakes (1986) 26 DLR (4th) 200, 222.
  78. R v Whyte [1988] 2 SCR 3, 17-18 See also R v Vaillancourt [1987] 2 SCR 636 and R v Chaulk [1990] 3 SCR 1303.
  79. R v Whyte [1988] 2 SCR 3.
  80. R v Whyte [1988] 2 SCR 3, 18. See N Jayawickrama (2002) The Judicial Application of Human Rights Law, Cambridge University Press, Cambridge, p541
  81. Grey v Police 31/10/01 Hammond J, HC Hamilton, AP 65/01.
  82. Grey v Police Hammond J High Court, Hamilton, AP65/01, 31 October 2001.
  83. See also R v Rangi [1992] 1 NZLR 385.
  84. R v Lambert (Steven) [2001] UKHL 37; [2001] 3 WLR 206; [2001] 3 All ER 577, HL. For a discussion of this decision, see Roberts, P (2001) "Drug Dealing and the Presumption of Innocence: The Human Rights Act (almost) bites" in The International Journal of Evidence & Proof 17.
  85. See the judgment of Lord Slynn of Hadley in R v Lambert (Steven) [2001] UKHL 37; [2001] 3 WLR 206; [2001] 3 All ER 577, HL at para 17.
  86. For an overview of regulatory offences see Andrew Butler "Regulatory Offences and the Bill of Rights in G. Huscroft and P Rishworth (eds) Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, Brookers, Wellington.
  87. Civil Aviation Authority v MacKenzie [1983] NZLR 78.
  88. R v City of Sault Ste Marie (1978) 85 DLR (3d) 161
  89. Note that the balance of probabilities is a lesser standard of proof than beyond reasonable doubt.
  90. R v Downey [1992] 2 SCR 10, 22-23; emphasis added.
  91. R v Rangi [1992] 1 NZLR 385, 390. See too R v Osolin [1993] 4 SCR 595 where the court stated that a defendant had to do more than assert his mistaken belief as to a fact, the assertions needed to have some "air of reality".
  92. Salabiaku v France (1988) 13 EHRR 379 at 388 (para 28).
  93. R v DPP, ex p Kebilene [1999] 4 All ER 801 at 847, [2000] 2 AC 326 at 385
  94. Prockter v R [1997] 1 NZLR 295, 299
  95. Lewis v Wilson &Horton [2000] 3 NZLR 546, 563
  96. R v Burns (Travis) [2002] 1 NZLR 387, 404-405; (2000) 6 HRNZ 506, 509-510 (CA)
  97. B v Police (No.2) [2000] 1 NZLR 31, 34.
  98. B v Police (No.2) [2000] 1 NZLR 31, 34-35.
  99. Oniel v Marks (2001) 195 DLR (4th) 59 (Ont CA); A v Wilson & Horton (2000) 6 HRNZ 106, 109.