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The
Christchurch Civic Creche Case |
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The suggestion that up
to a score of New Zealand inmates might be wrongly imprisoned comes as little
surprise to those familiar with the workings of the legal system. The cornerstone of New
Zealand's court processes is the adversarial system. This is a procedure
which essentially involves a contest between prosecution and defence as to
who can best conform to a precise set of rules. It is not designed to
establish the truth - surely a fundamental flaw. The well-understood
outcome of this process is that a small number of innocent people will be
found guilty, and a larger number of guilty people will be acquitted. We should be concerned
not only for the innocent who are wrongly imprisoned, but also about the
impact on the community of acquitting the guilty. This leaves victims
doubly traumatised. They are devastated by the initial crime and suffer a
further crisis of confidence in the legal system when they find that it gives
them no justice. They are also likely to
be left fearful about their future safety, as they know that they have been
victims of crime once and that the lesson for the offender is that he or she
can flout the law with impunity. Retired High Court
judge Sir Thomas Thorp has written a report, Miscarriages of Justice, which
estimates that as many as 20 people could be wrongly imprisoned in this
country, and proposes setting up an independent authority to identify
miscarriages of justice. But perhaps it is time to take a wider look at the
shortcomings in our legal system. We have a process
which, though it may strive for equality, in practice punishes the poor more
harshly than the rich. Our court processes are
bruising for victims, and punishments do little to prevent re-offending. One result of the flaws
in the adversarial process is that our courts are slowly moving to use of the
inquisitorial system. This is happening
gradually, without overall debate or a decision that it is time to abandon
the adversarial system. The inquisitorial
system is widely used in Europe, where judges actively inquire into the facts
with the aim of establishing the truth. Inquisitorial processes
are already used in the Employment Relations Authority, the Disputes Tribunal
and to some extent in the Family Court. Widespread frustration
among judges and others involved in court proceedings about the futility of
employing the adversarial system to resolve domestic violence cases has also
led to the setting up of pilot, specialist Family Violence Courts. These work within the
criminal court, but are designed to provide a speedier and more effective
means of dealing with violence in the family. At the Manukau District
Court, all domestic violence criminal charges are now referred to the
specialist court, with the aim of finalising matters within two or three
weeks. That can be contrasted
with the months or years it takes for the adversarial process to produce an
outcome when cases go to full defended hearings. Debate is also taking
place about whether procedures for trying sex offences can be improved. Rape victims are well
aware of the horror of the court process for the victim, and some decide they
simply cannot go through a trial. The law is such that a
defence of consent is commonly argued, and conviction rates are extremely low
in such cases. The public issues
committee of the Auckland District Law Society in a June 2002 report called
for a review of the procedures for the trial of those accused of rape and
other sexual offences. The document said that,
despite many reforms of rape laws in recent years, there was still a
substantial degree of under-reporting of sexual crimes. This resulted in
perpetrators believing they could act with impunity, while victims felt
powerless. Ultimately, that undermined the criminal justice system itself. The committee urged the
Government to establish a taskforce to consider changes to sexual offence
trial processes to ensure that victims received access to justice. Proposals included rape
victims being represented by their own lawyers to ensure their input at every
stage of the process, use of the inquisitorial process and removal of the
right to silence. A forum held in
Auckland in November 2003 further debated these issues, and in particular
made reference to the specialist courts which have been established in South
Africa to deal with sexual offences. Research has found high
satisfaction with the system, and the conviction rate for sexual offences in
South Africa is more than 80 per cent, compared with 44 per cent in New
Zealand. All the moves away from
the adversarial system are a de facto acknowledgment of its flaws. However, it is
unsatisfactory that there should simply be a piecemeal abandonment of the
process without any coherent debate. In the meantime, I
continue always to describe our court processes as our "legal"
system, and never as our "justice" system. * Catriona MacLennan is
a South Auckland barrister. |
