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The
Christchurch Civic Creche Case |
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A hot legal topic late
last week highlighted a claim that up to 20 people may be wrongly imprisoned
in New Zealand. Well their mummies would say that wouldn’t they? Our peak prison
population was recently 7592. Twenty alleged innocents account for one
quarter of one percent. Some will cry that there should not be one innocent
person in prison. I agree, but what system could guarantee a better result? Retired High Court
Judge Sir Thomas Thorp wrote a report. His remark about “20 innocents” simply
applied United Kingdom findings proportionately to our own prison population.
This is an extraordinarily blunt measuring instrument but has now led to a
shrill cry for “an independent body” to judge the judges. The Law Society, the
Criminal Bar Association, defence lawyers and the murderers’ and paedophiles’
supporters’ society have all climbed on the bandwagon with the rhetoric of
“this sounds good, I’ll have some of that”. I am not going to
criticise Sir Thomas. He is a highly experienced intellect in this field. He
analysed 53 applications to the Justice Ministry which claimed miscarriages
of justice from 1995-2002. In his report, Sir
Thomas said a fully independent and appropriately staffed and resourced
authority should have the task of identifying miscarriages and putting them
forward for reconsideration by courts. This body should have investigative
powers. But the vital words in
this last paragraph are “putting them forward for reconsideration by courts”.
He does not suggest a further lay person committee to act as a final Court of
Appeal. The distinction is crucial. Sir Thomas’s report must not be hijacked
and misinterpreted. The issue of a
so-called “independent body” to judge the judges and the courts is fraught
with difficulties. I say it is a concept pushed by those who will cry
“another triumph for British justice!” when there is an acquittal, but who
will not run down the street exclaiming the same sentiment when a guilty
verdict is returned against their shifty-eyed scoundrel or violent villain
son. I accept that any
innocent person being convicted is a tragedy. But what is suggested here? And
what misinformation is being released to the public? A Law Society spokesman
has said “the current appeal process only applies to errors of law”. That is
plainly wrong. High Court judges can overrule District Court judges on issues
of fact and the Court of Appeal can overrule juries on questions of fact if
it believes that no reasonable jury could have arrived at a guilty verdict on
the evidence presented at trial. A Criminal Bar
Association spokesman has said that “the justice system tends to shy away
from reopening cases which have been closed”. That statement creates the
wrong impression. Appeal courts can and do examine trial evidence and due
process against fundamental principles relating to potential miscarriages of
justice. Our system clearly allows cases to be reopened. Trial lawyer
incompetence, faulty evidence, fresh evidence, unfair admission of evidence,
unreliable evidence, retracted evidence, wrong inferences and a whole host of
factual re-examinations impact on the appeal process. That’s what appeal
courts do. Is it suggested that
every case should automatically be allowed a full rehearing as of right?
No-one suggests that. That proposition is crazy. Is it suggested that
juries should be abolished? Do you still want to be tried by 12 independent
people or would you be happy to surrender to state-appointed professional
panels? Is it suggested that
the concept of reasonable doubt should be replaced with “beyond a shadow of
the doubt” or “beyond a fanciful doubt”? The term “reasonable doubt” means
just what it says. Is it suggested that the test should be higher than beyond
reasonable doubt? Should you be acquitted on an “unreasonable” doubt? I think
not. Is it suggested that an
“independent body” is to be grafted on top of a system of appeals? If you are
not satisfied with your original verdict, unhappy with your failed appeal to
the Court of Appeal, distraught that you couldn’t persuade the Supreme Court,
and beside yourself when the Governor-General refused your application for a
pardon, should you still be able to approach an independent body outside the
appellate structure with that independent body effectively judging the
judges? And if there was such a
right, should it be restricted to the accused? What if the police are not
satisfied with the decision of a jury or a final appellate court? Should they
be allowed to trumpet a “miscarriage of justice”, or is this an independent
body only for criminals? I need not go past Sir
Thomas himself for a case to illustrate the difficulties. Sir Thomas investigated
the David Bain case and believes the verdict was correct, but we know that
Joe Karam energetically and sincerely believes the verdict was quite wrong.
That is not a criticism of Mr Karam at all. I simply highlight the fact that
there will frequently be a divergence of views on matters of evidence. In my view, it’s far
too easy for the disaffected, those lacking objectivity and those who
misquote evidence and remain subjective and selective in their criticism of
certain verdicts to be allowed to call for yet another form of investigation
or appeal outside the tried and tested judicial system. Oh yes, I know this
column will no doubt draw some letters of protest, but such protest must be
supported by something more than a personal disagreement with a jury, Court
of Appeal or Supreme Court decision. Michael Guest is a former lawyer and
District and Family Court Judge. |
