Non-Common-Sensical: An Inference of Guilt to Sanction Non-Compliance with Defence Disclosure

Abstract

In New Zealand, defendants in criminal proceedings are presumed innocent until proven guilty. The burden of proving the defendant’s guilt is on the prosecution and the standard of proof required is beyond a reasonable doubt.These procedural rights are guaranteed to defendants by the New Zealand Bill of Rights Act 1990 (BORA) and are integral to securing the just determination of criminal proceedings. Because a case against a defendant can never be proved beyond all doubt, logical inferences from established facts are an unavoidable part of the fact-finding process. As part of its Criminal Procedure Simplification Project (CPSP), New Zealand’s Ministry of Justice (Ministry) is currently considering the implementation of mandatory defence disclosure of the issues in dispute at a pre-trial hearing stage (issues ID process). The Ministry has released a draft Bill outlining how the issues ID process will be incorporated into the existing law. This paper will address the enforcement mechanism adopted by the draft Bill – an indiscriminate inference of guilt from non-compliance. The proposed inference will align the Ministry’s issues ID process with the extensive reforms carried out in England and Wales (E&W) during the 1990s.