Setting the Scope: Is Extending Pre-Trial Defence Disclosure Consistent with the New Zealand Bill of Rights Act 1990?

Abstract

This paper examines the implications that the draft Criminal Procedure (Simplification) Bill has for the New Zealand Bill of Rights Act 1990. Its particular focus is on the Law Commission’s and the Ministry of Justice’s proposal to extend a defendant’s pre-trial disclosure obligations and require a defendant to set the scope of his or her trial by giving notice of the issues that he or she intends to dispute. I aim to pre-empt the Attorney-General’s vet of the draft Bill for consistency with the rights to silence as affirmed in ss 23(4) and 25(d) and the presumption of innocence as affirmed in s 25(c). In my view, requiring a defendant to identify the issues he or she disputes does not infringe either of the rights to silence, but the proposed ability to infer guilt from a defendant’s non-compliance is a prima facie breach of the presumption of innocence. However, this breach is a demonstrably justified one under s 5 due to the likely contribution that the sanction, and the extension of defence disclosure, will make towards improving criminal procedure. Therefore, the proposal to require a defendant to identify the issues in dispute passes a Bill of Rights scrutiny.