|
The Dominion
November 27, 1996
A legal system on trial
by Robert Mannion
With several jury trials attracting claims of injustice, Robert Mannion
reports on the case for dropping our adversarial criminal justice system in
favour of the European inquisitorial code
--------------------
In this French court of assizes (equivalent of the High Court), an accused
man faces the 12 people on the bench who will hear the case then retire
together to find whether he is guilty. The 12 consist of three judges and
nine lay people.
All 12 may ask questions of the witness but they must be directed through the
president of the court, the judge in the central seat.
At far left is the avocat-general -- the public prosecutor -- who is a
judicial public servant like the judges. Defence lawyers would be seated on
the right (out of the picture)
--------------------
A YOUNG lawyer recalls how she sat next to two colleagues in the library at
Auckland's High Court who were planning a defence case for rape.
She discovered that the alleged rapist had wanted to say he was somewhere
else at the time of the crime. But his lawyer had persuaded him to change to
a defence of consent. Now he would say he had had intercourse, but that the
woman had agreed.
As a strategy, the advice was probably sound. But the young lawyer's unease
will be familiar to anyone who has ever worried about how little the truth
seems to count in our system.
Along with other former British colonies, New Zealand has inherited English
common law and an adversarial criminal justice system. Within the rules, each
side presses its case as hard as it can. The theory is that if the process is
properly followed, justice -- or at least a "safe" verdict --
should out.
As a result, lawyers are trained not to ponder too much on what is actually
true. Indeed, if an expert witness tells a defence lawyer something that is
vital but harms the defence case he or she simply won't put that witness on
the stand.
To an outsider, this can all seem perverse. But if you have ever had the
argument with a friend who is a lawyer you will know the standard reply. They
concede doubts (I've yet to meet a lawyer who seriously believes our courts
dispense "justice"), but still say that, for all its faults, our
system is still the best in the world.
The problem is that the faults appear to be increasingly at the fore. And the
claim might just be a reflection of blind faith.
The most obvious rival is the European continental law, also called the civil
law, or, more ominously, the "inquisitorial" system. But telephone
calls to academics, the NZ Law Society and others, suggest that no one in New
Zealand has made a study of how the European system compares with our own.
One law lecturer, who asked not to be named because she did not wish to be
seen as an expert on other legal systems, says: "First-year students are
simply given our system as the right way, coached in its strengths, and that
is that."
Yet, even on the basis of an untrained reading of comparative law texts, the
continental law does seem to have won wide favour as working better in
several important ways.
European courts seem largely free of the serious doubt about verdicts that
has occurred increasingly here. Perhaps more importantly, European legal
experts find our system at odds with common sense.
Associate Professor Klaus Bosselmann, of Auckland University law school, is
said to be one source who can speak authoritatively on the continental code.
Formerly an administrative judge in Germany, Dr Bosselmann says a good
measure of any legal system is how well it is trusted by the community it
serves.
Europe has its own causes celebres, but by comparison with common law
countries, there is a very high level of public confidence in court
decisions. A population of more than 800 million seems to produce fewer cases
involving serious doubt than New Zealand has managed in the past few years.
That confidence also translates into how lawyers are seen. Lawyers in common
law rank very low in polls on public respect (third from the bottom --
narrowly above sharebrokers and politicians in New Zealand). In Europe,
lawyers are highly regarded -- though the law is not seen as so lucrative a
career. "You have much more drama here," Dr Bosselmann says.
"You have this wonderful situation where the court is compared to a
rugby game or a boxing fight and so on, and you just see who wins. And of
course it has a sense of English fairness, which I appreciate and have a lot
of admiration for. But basically you say who won and you don't consider the
truth."
But which system would he prefer to face a serious criminal charge in? If he
were innocent, he says, he would rather be in Europe, as the safeguards
against misguided prosecutions are higher. If he were guilty? Well, "you
have more hope here".
The civil law, with variations, applies to all continental Europe. Other
countries, such as South Africa, have moved away from common law to include
more of the European system.
The continental model has long been victim to three popular misconceptions:
that the accused is presumed guilty until proven innocent; that there is no
jury trial; and that the trial is "inquisitorial" in a way that
suggests unfair means.
In fact, the presumption of innocence applies equally in Europe. Lay judges
sit in most courts. And the word inquisitorial reflects only the active role
played by investigating judges. One legal text suggests a better word would
be "non-adversarial".
In our system lawyers drive the process, and the judge's role is more akin to
that of a referee. In Europe, the roles are different. Investigating judges
direct an extended inquiry and the lawyers' role -- this infuriates writers
in English legal magazines -- is diminished.
For us, a trial happens all at once with everybody in the same room. If it
fails to reach a verdict we simply do the whole thing over again. A European
investigation is a sustained inquiry, stretching over several meetings and
possibly many months. Defence and prosecution are represented by lawyers. If
the truth is deemed unknowable then the defendant gets the benefit of the
doubt.
Because of the undramatic, slow progress of an inquiry, debate and courtroom
tactics count for little. Defendants are more likely to be summonsed than
arrested. Final judgment is usually given by a two-thirds majority of a panel
of lay and professional judges.
If new facts come to light there is time to consider a response. Neither side
can be ambushed. The court calls its own expert witnesses. European courts
would view with extreme suspicion any witness who had, as in our system, been
"briefed" by a lawyer in advance. The defence has total access to prosecution
evidence, but in return an accused person who insists on his or her right to
silence can expect this to count against them in court.
One author says the combination of a talking defendant and unlimited
discovery has become a "highly efficient vehicle for the ascertainment
of truth".
HOW much less satisfactory our system is can be seen from recent cases.
Convicted of 16 counts of molesting children, former Christchurch Civic
Centre creche worker Peter Ellis is going to the Privy Council to argue that
the jury did not see key evidence.
Convicted Dunedin mass murderer David Bain also says key evidence was ruled
out.
Protesting his innocence of the Thomas double murders after three trials,
Wellington businessman John Barlow is also planning to go to the Privy
Council. At appeal his lawyer argued that the judge misdirected the jury and
minimised the importance of detailed evidence and that there was conflict
over how to interpret expert evidence.
Ross Appelgren was convicted for murder at two separate trials, but is still
seeking to have the convictions quashed. At his first trial the prosecution
acknowledged they withheld vital evidence. After both trials, jurors have
recanted their verdicts.
Kevin Ryan, lawyer for convicted murderer Warwick Bennett, has told the Court
of Appeal that Bennett suffered because his lawyer did not do a good enough
job.
In Europe, none of these men would have necessarily got their desired result.
But their complaints about the process would have been addressed.
Ellis's, Bain's and Appelgren's judges (lay and professional) would have seen
all the evidence. Independent experts would have been heard from in Barlow's
case. And, because the European system is so much less a contest between
lawyers (investigating judges are required to assist weak lawyers), Bennett's
case of poor representation would carry less weight.
And then there are the cases where complaints have come from the opposite
direction. With murdered Auckland women Agnes Alli'iva'a and Janine Law --
along with Invercargill manslaughter victims Virginia Armstrong, Bridget
Horgan and Megan Hamilton -- police have acknowledged they were wrong not to
have treated the deaths as suspicious.
Arguably, an examining judge would have required police to do more.
Maybe the best example is the Arthur Allan Thomas case in the 1970s. Two
murder trials failed to win confidence in guilty verdicts. Eventually a royal
commission of inquiry pardoned him as innocent. Its verdict has never been
challenged, and commissions of inquiry -- which do set out to discover the
truth -- are about as close as we get to the European model.
The main criticism of the European system is that it risks giving too much
power to an investigating judge. But these officials have the same respect
accorded to judges here. Most countries offer three opportunities for appeal,
and at a first appeal the court will hear the whole case again.
In some areas, such as administrative law and family law, we are moving
toward a less adversarial approach. Equally, there have been calls for
reform. One High Court judge has written that our tradition of first hearing
the entire prosecution case before any outline from the defence means,
"(even) trained judges, long experienced in the courts, sometimes go
days into a case before they can discern what it is really about".
But there is little call for big change. This might need to come from outside
the legal profession.
With a population of more than 80 million, Germany has just 25,000 lawyers,
versus 40,000 in Britain with a population of 65 million. True, Germany has
25,000 judges against Britain's 300, but these people are court officers,
never seeking the personal reputation our defence lawyers build careers on.
For lawyers, Europe is less fun. But the people their system serves seem
demonstrably happier with the result.
* Tomorrow: a new approach to district court cases
|
