Innocence and discipline in NZ

A recent judgment of the NZ Supreme Court, Z v Dental Complaints Association [2008] NZSC 55, looks at the vexed question of the overlap between criminal investigations and professional discipline, which is also coming before the Victorian courts. In contrast to Victorian case (where a doctor is being disciplined after being charged but not before being tried on rape charges), the NZ case concerns a dentist who is being disciplined after being acquitted of indecent assault charges. As I posted in relation to the Victorian case, I think that such cases raise some interesting rights issues concerning the presumption of innocence. Indeed, while I don’t think a ‘risk’-based discipline proceeding is a breach of the presumption of innocence of someone who is yet to be tried, there is some European authority for the view that the rules get much tighter if someone is acquitted (although Charter s. 38(2) would presumably provide cover for such a process here and Charter s. 7(2) may well protect an authorising statute from a declaration too.)

So, I was quite disappointed to see that the presumption of innocence was not discussed in the NZ case. The majority focused exclusively on the questions of abuse of process and the appropriate standard of proof, while Elias CJ, in dissent, considered only the right against double jeopardy (and, even then, found that the proceedings didn’t contravene that right but clashed with its spirit.) However, when I looked to the relevant section of the NZBoRA, I saw the explanation:

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

(a) The right to a fair and public hearing by an independent and impartial court:

(b) The right to be tried without undue delay

(c) The right to be presumed innocent until proved guilty according to law:

(d) The right not to be compelled to be a witness or to confess guilt….

And so on. This is different in a subtle way from the Charter (and the ICCPR), which place the rights in para (a) and (c) in their own separate provisions. So, in particular, Charter s. 25 says:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- (a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and (b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her…

And so on. The crucial difference is that NZBoRA’s criminal trial rights (including the presumption of innocence) are limited to the determination of the charge (i.e. the trial), whereas the Charter’s process rights aren’t so limited (and, in particular, can readily pick up the ECtHR jurisprudence on the non-trial aspects of the presumption of innocence.)

It’s true that Charter s. 25 has the heading ‘rights in criminal proceedings’, but I don’t think a short title can – or at least ought to – have the effect of narrowing down the scope of Charter rights. In particular, doing so in the case of the presumption of innocence is unjustified in light of the wording of the ICCPR right:

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

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing…

And so on. Under the ICCPR, it’s clear that the presumption isn’t limited to the determination of criminal charges.

I’m not sure why the NZ folks added in the limitation. Maybe they thought it looked neater? Anyway, the moral of the story is to be cautious about NZ precedents on criminal process rights. The Victorian judge who gets to hear Dr Sabet’s Charter challenge will have to look elsewhere than the NZSC, despite its recent judgment on the very clash of systems that Sabet’s case is concerned wtih.

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