Helping Victims Should Not Come At The Expense Of Fair Trial Rights

Last week Labour's Justice Spokesperson issued a press release, which I believe signals a fundamental erosion of two basic foundations of criminal law. In fairness I should point out that the Government's Minister of Justice mooted proposals that were worse and that Labour's Justice Spokesperson acknowledges the importance of preserving fair trial rights. However, notwithstanding that concern, the announcement appears to involve an erosion of those very rights. For completeness I have copied the press release:
"Victims should be at centre of domestic violence measures    2 JUL 2014

Serious measures to stem our appalling record of domestic violence are overdue but creating another Ministry of Justice adviser and abolishing fair trial rights for alleged offenders will make little difference, Labour's Justice spokesperson Andrew Little says.

The Government today announced a number of measures to address domestic violence including creating a chief victims adviser and allowing courts to draw a negative conclusion if an alleged offender doesn't personally give evidence in a trial.

"The people who most need advice are the victims themselves, not the Minister who has access to an army of public servants to advise her every day.

"It is the victim who needs help navigating a police investigation and a criminal justice system that often overlooks that they are even there.

"Victims need a court-based advocate so they know what is going on, what they can do, how they can have a say and what their rights are as a witness in any trial.

"As for trials of sexual offences, the reason why many victims either don't lay a complaint or don't go through with one is fear of the court process and the likelihood of humiliation and re-victimisation.

"Allowing an adverse inference to be drawn if an alleged offender doesn't give evidence is an open invitation for defence counsel to be even more aggressive in their cross-examination.

"A better measure would be to hand control of all examination of a victim to the judge with lawyers for both sides notifying the court which issues they want dealt with, along with shifting the burden of proof on the issue of consent to the defence.

"This approach does not contradict the fundamental principle that a defendant is innocent until proven guilty - the basic facts of the case still have to be made out - but it does mean the prosecution doesn't need to prove a negative, namely that there was no consent.

"Judith Collins’ approach is as good as the defendant being regarded as guilty until proven innocent, something she says she is opposed to,” Andrew Little said.

Labour's policy on dealing with domestic violence will be announced on Friday."

 What causes me deep concern over that statement is the emboldened sentence above. I can find no logic for eroding the right to silence, or shifting the burden of proof, just because a trial is one that involves an allegation of rape. It is fundamentally repugnant to justice, that just because the charge is one of rape, that the burden of proof shifts to an accused person. To assert that the burden must shift to an accused, because the charge is rape, effectively involves an erosion of the presumption of innocence, no matter how you try and spin it. The state would be effectively saying, that unlike other crimes, when there is a claim of rape, the complainant is somehow, more truthful, so much so, that the burden of proof shifts to an accused.

I have been involved in trials, where as a result of cross examination of a complainant, a new line of defence emerges in the process of trial. To transfer the right for the defence to cross examine a complainant because the charge is one of rape, to the judge, who vets the questions and asks them, means the defence effectively loses the right to silence and has to telegraph its defence in advance.

I have also been involved in sexual violation trials, where it emerges that the complainant has been untruthful. It is sad, but true, that it is not only accused persons who may lie, sometimes complainants do as well. Sometimes a complainant may have been violated as they claim, are convinced that X did the deed, but in fact it was someone else (for example in the David Dougherty case). Sometimes, the Police take short cuts and have just got the wrong person. Further, sometimes over time the complainant makes mistakes and memories become inaccurate.  This is especially so in cases involving delay. Delay is often involved in many of the sexual violation cases that come before our Courts. In cases where there is delay one can see the need for the robust protections of our criminal law most clearly. The usual or ‘presumptive’ results of long delay are the possibility of honest unreliability on the part of the complainants, including possible unconscious substitution of an imagined reality for what actually occurred, the fading and loss of recollection of pertinent details by an innocent accused and the loss of legitimate opportunities to test the detail of allegations and marshal evidence pointing to innocence.  McHugh J (in remarks later approved in Crampton v the Queen (2000) 206 CLR 161 by Gaudron, Gummow and Callinan JJ, said in Longman v R (1989) 168 CLR 79 at 107:

‘The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented.  The longer the period between an “event” and its recall, the greater the margin for error.  interference with a person’s ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling.  recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine:  …

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complainant and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. …

 Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be....  By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony.’

The reality of human nature and long trial experience, point out the need to maintain robust fair trial protections. The move to shift the burden of proof and erode the right to silence, albeit for noble intentions, marks a major weakening of the Golden Thread that runs throughout our justice system.  The term "Golden Thread" comes from the decision in Woolmington v DPP  [1935] UKHL 1, a famous House of Lords case in English law, where the presumption of innocence was said to be first articulated in the Commonwealth. In articulating the ruling, Viscount Sankey made his famous "Golden thread" speech:

Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

We all agree that rape is a horrid crime that involves cruelty and an abuse of power. Once properly convicted offenders should be punished and victims should be given as much assistance as practically possible. However, eroding basic protections of our criminal law should never be a solution. 

MFAT'S MALAYSIAN MALAISE

I am concerned over the "trial by media" of the diplomat Muhammad Rizalman bin Ismail sent home in a murky deal with MFAT over charges of burglary and assault with intent to rape resulting from behaviour that is alleged to have occurred in the Wellington suburb of Brooklyn in May this year. I think the way this case has been reported has created an environment that would enable the Malaysian Embassy to argue their diplomat could not receive a fair trial in NZ. Essentially the media have robbed the diplomat of his right to elect trial by jury. There is scant chance of any jury pool being untainted by prior knowledge and the spin regarding this case. The only person who hasn't heard that the man's neighbour thinks he was odd, or about any other matters regarding the case and his personality would had to have been in a coma. As for a judge alone trial,  research from Australia suggests that if you elect trial by judge alone you face an 87% chance of being convicted, whereas if you elect trial by jury you face a risk of conviction of under 50%. These figures don't apply to each case and are only averages. I just find that for all the media's puffery about bringing this man back to "face justice", they have created an environment where the Malaysian Government could argue that he would not receive a fair trial. 


There is clearly a presumption in favour of the open reporting and the public administration of justice, and any assessment of suppression must adopt that presumption as a starting point. The presumption is not a “fundamental principle” and is capable of being displaced. Priestley J states in GAP v Police at paragraph 40:

Although the Judge here has correctly articulated all the relevant factors, the risk of this trap manifests itself in para [3] of his judgment (supra) where he refers to the open justice factor, not once but twice, as a “fundamental principle”. The characteristic of fundamental principles is that they are immutable.  But as is  clear from the Court of Appeal authorities to which I have referred (supra), in some cases the presumption can indeed be displaced.  The principle of open justice is the starting point.  In the balancing exercise which must occur after the start it remains a potent factor.  But, if viewed as a presumption, it is an error to regard it as irrebuttable or so “fundamental” as to be impossible to displace.  Nor should courts use the presumption as a pretext to avoid weighing the vital constitutional interests and the individual circumstances of a case to ensure that a just result flows from the discretionary exercise.

In this particular case the presumption is displaced by the fundamental right to a fair trial provided for by section 25(a) of the New Zealand Bill of Rights Act 1990:

25 Minimum standards of criminal procedure

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:

The right to a fair trial is capable of displacing the presumption of open justice. The Court of Appeal held in R v Burns (Travis) [2002] 1 NZLR 387, 404 at paragraph 10:

[10] In the sphere of the criminal justice system the right to a fair trial has been jealously guarded by the Courts. No right is more inviolate than the right to a fair trial. Not only is it the fundamental right of the individual but it permeates the very fabric of a free and democratic society. The notion that a person should be required to face a trial and endure the punishment which a conviction would bring, when the fairness of that trial cannot be assured, is repugnant. Indeed, it has been judicially observed that the right to a fair trial is as near an absolute right as any which can be envisaged. See R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779 at p 787. It is for this good reason that the Courts at times insist that the right to a fair trial must prevail over the principles of free speech and open justice. As Cooke P in R v Liddell stated at p 547, in considering suppression orders "Departures from the principles [those of free speech and open justice] are necessary at times to avoid prejudice in pending trials."

At paragraph 11 the Court held:

[11] The comments in R v Liddell and the Gisborne Herald case clarify the nature of the balancing exercise to be undertaken when considering whether to grant or revoke a suppression order. The public's right to receive information, the principle of open justice, the type of information in question, its public importance and interest, its likely circulation, methods of diluting its effect on the minds of potential jurors, the presumption of innocence, and other issues are all to be balanced against its prejudicial effect. But once this exercise has been completed and it has been determined that there is a significant risk that the accused will not receive a fair trial, the issue ceases to be one of balancing. The principles of freedom of expression and open justice must then be departed from; not balanced against. There is no room in a civilised society to conclude that, "on balance", an accused should be compelled to face an unfair trial.

[Bold added]

 In Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563, the Court of Appeal held at pg 575:

…But the absence of current empirical data to support a long-standing assumption embedded in public policy is not, in our view, adequate justification for shifting policy ground in favour of another approach which is also deficient in supporting policy data and analysis. The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot both be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.

In New Zealand I am not aware at least in recent times of any Court having the courage to say that the media have gone too far in the way they have reported a case and stayed it. The current reasoning appears to be that a judicial direction to ignore any pre trial publicity can operate as a magic salve and jurors can remove any prejudice from their minds.

This however begs the question of how jurors treat such directions and whether the direction itself is informed by an accurate assessment of the statistical importance of the previous history itself. In the debate around loosening up New Zealand's laws regarding proof of relevant previous convictions (propensity) the New Zealand Law Commission appears to take comfort in the fact that juries will place great store in and follow judges’ directions when considering propensity evidence. In part this position is described by the Law Commission as being “almost an article of faith” and is informed in part by findings of New Zealand research contained in the study Jury Trials in New Zealand: A Survey of Jurors.

The Law Commission notes the need for caution with this research. In the 2008 paper Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character[1], the Commission notes in chapter 7:

7.34 As stated, there is a need for caution in applying this 1998 New Zealand research. the study itself notes a “potential limitation inherent in the methodology” employed:

(1) primary reliance on self reports by jurors, whose perceptions may not have

been accurate, and who may have been influenced by assumptions or

prejudices of which they were unaware;

(2) a possibility jurors deliberately underplayed the influence of factors such as

speculation or prejudice upon their behaviour because they were aware it

was contrary to judicial directions;

(3) the passage of time between trial and interview, with some interviews not completed until a week or two after trial;

(4) a possibility that jurors who agreed to be interviewed (54.3%) did so for reasons which may have biased their responses (they may have had a particular criticism or felt particularly positive);

(5) a possibility that knowledge the research was taking place may occasionally have influenced behaviour. the researchers were able to crosscheck to some degree on (1) and (2). The remainder are unknowns.

Against this study there is the work of the Australian Law Reform Commission and international research into the effectiveness of judicial directions to juries in regards to prior criminal history, which demonstrates that directions to disregard such evidence or to ‘ring-fence’ it for a limited purpose, are often ignored not complied with. 

The ALRC in their 2006 comprehensive overview of the research in this area reference the research of Wissler and Saks, which concludes on this topic:[2]

On the basis of the available data, we conclude that the presentation of the defendant's criminal record does not affect the defendant's credibility, but does increase the likelihood of conviction, and that the judge's limiting instructions do not appear to correct that error. People's decision processes do not employ the prior-conviction evidence in the way the law wishes them to use it. From a legal policy viewpoint, the risk of prejudice to the defense is greater than the unrealized potential benefit to the prosecution. A change of the rules to exclude evidence of prior convictions for defendants would protect defendants while not disabling the prosecutor. The defendant automatically has exceedingly low credibility for a jury, and the prosecution still has "other recognized means to challenge the credibility of a witness" (Margolis, 1972, p. 525).

This material indicates that even judicial officers can be affected by unconscious bias against an accused once they are aware of previous convictions, despite being aware of the cautions that attach to the admission of such evidence.

3.18 The prejudicial effect of evidence of previous misconduct has been confirmed in research conducted by the Law Commission of England and Wales involving magistrates and mock juries.[3] In relation to mock juries it was found, among other things, that information of a previous conviction for indecent assault on a child can be particularly prejudicial whatever the offence charged and will have a significant impact on the jurors’ perception of the defendant’s credibility as a witness.[4] In relation to magistrates, the study concluded that:

In general the results indicate that information about previous conviction is likely to affect magistrates’ decisions despite their awareness of the dangers and their efforts to avoid bias. These findings did not offer confidence that the rules on admitting previous convictions can be safely relaxed for magistrates anymore than for juries.[5]

The point being, that if actual research shows that jurors in fact do not pay heed, despite the dogmatism of our Courts to juror cognisance of judicial directions as an article of faith, then in reality how can an outsider looking in at New Zealand, have any faith in fair trial rights based upon a judicial direction remedy? 

This case is not the one to run the sexual conviction rate versus acquittals debate. What is annoying is the trial by media that has occurred. That may mean that no trial will ever occur. Responsible reporting would have meant the story could still have run, but with the focus on MFAT and the Minister without the need to publish matters germane to any prospective trial. I dislike mob rule and populism and how it appears to have been used to erode fair trial rights. 

[1] NZLC R103 Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character, 12 June 2008

[2] R Wissler and M Saks, ‘On the Inefficiency of Limiting Instructions: When Jurors Use Prior Conviction Evidence to Decide on Guilt’ (1985) 9 Law and Human Behaviour 37, 47

[3] Law Commission, Evidence of Bad Character in Criminal Proceedings, Report 273 (2001), Appendix A, [A 35]–[A 38].

[4] See Law Commission, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant, CP 141 (1996) Appendix D, [D 63]

[5] Law Commission of England and Wales, Evidence of Bad Character in Criminal Proceedings, Report 273 (2001), Appendix A, 

INCHWORM

By Michael Bott


John Fenton was a geeky kid, with sticky out ears, rubbery lips, and blond hair that projected from his misshapen head like the bristles of a toothbrush. He was tall and lanky and made my life hell when I was 9 at school. What I didn't know was that he was an orphan and lived down the road at a foster house run by Mrs Black.

John found out that I was adopted, "Hey Bott ya bastard!" This taunt rang across the playground. Stung by this label - "what the hell was a bastard?" I responded with a feigned disinterest, "Aw shut up Fenton." The bell rang, back to class.

I was sitting in my class, when there was a knock at the door. A student who was acting as a runner had spoken to the teacher. Mr Milne looked at me. "Michael, Mr Scott wants to see you." I got up and didn't know why.

Mr Scott was the deputy principal, he lived at home with his mother, who was in her 80s. He drove the same car an old immaculately maintained Singer Vogue, and always wore a suit with a hand knitted vest. Once a week we held school assembly outdoors. All of us children would form lines, boys on one side, girls on the other and we would march into the asphalted central ground and line up in rows for inspection, in the middle of the baking heat of summer or the frosts of winter. Mr Scott would then address the school. "School attention!" We crack to alert, arms at our sides, backs straight and eyes ahead. "At ease!" That meant we stood with our arms behind our backs, legs apart, facing straight ahead. Teachers looked down the rows. I remember one occasion on a baking summer morning, when my mate Kevin couldn't cope with the heat, he fainted after half an hour in the sun. We broke rank to pick him up. "Leave him be! Attention!" Barked Mr Scott. So we left Kevin to bleed on the padder tennis court as Mr Scott continued to address the school. Messages over, national anthem sung, we were ordered to attention and turned as one, as we marched  back to our class rooms to an old recording of Colonel Bogey as it blared out over the school's loudspeakers.

I was sent by the school secretary to Mr Scott's classroom Room 5, packed full of standard 4 students - the biggest kids in the school. I knocked on the door and walked in. Mr Scott looked up from his desk and said, "Yes, what?" "I'm Michael, you wanted to see me?"

Mr Scott said "Yes, step out into the corridor." As he said this, he pulled open his desk drawer and grabbed a strip of thick brown leather. "Oh no, the strap!" As I turned to walk outside I saw the entire class look at me and smile "Dead man walking. What had I done?"

Mr Scott followed me out to the corridor, he glared down at me, "Well why did, you do it?" "Do what Sir? What do you mean?" I asked. I looked at Mr Scott, he glared down at me, as I looked into his face, I discovered that one of his blue eyes, was lifeless - he had a glass eye! 

Years later he told me, that in the Second World War, he and his best friend were resting in a shallow dugout. A Japanese grenade was thrown, his friend rolled onto the grenade taking the blast and losing his life. A piece of shrapnel took Mr Scott's eye. Damaged he came home, carrying the scars of a shattered youth he became a teacher and visited in turn his scars upon us.

This one eyed giant was now glaring down at me, demanding to know what I said and why? I had no idea what he was talking about and was scared, humiliated and began to cry. I asked for my mother,"Don't give me that mummy treatment!"  I wanted to talk to someone, to get some advice. What had I done? "Hold your hand out." I held my hand out. "Whack, whack, whack!" "Hold your other hand out, "whack, whack, whack". Mr Scott lifted the leather strap to his shoulder and bought it down on my open nine year old hands, for a crime, the facts of which I had no idea. 

After punishment I was told that I was getting the strap for swearing in the playground. "But I only said shut up, after I was called a bastard." "Well you should have told me that when I asked", was Mr Scott's reply. What could I say? I was scared and had no idea, what he was even talking about. The pain was nothing, what stung was the injustice of it and the reality that I was powerless to do a thing about it.

A couple of months's later I had forgotten about the shame of being strapped and our standard 3 class were having a choir lesson with Mrs Treecher in the school hall. We were singing Inchworm. "Inchworm, inchworm, measuring the marigolds.... " Two students away from me was John, he was mouthing the words, but no sound was coming out. "Silence!" Mrs Treecher demanded. "You, Snow" she pointed a finger at John, "come here!" "You weren't singing, were you?" "No miss" he grinned an embarrassed grin.

"Right, you think it's funny? Get on the stage and lie on your stomach!" For the rest of the choir lesson we were made to sing Inchworm again and again and again as John Fenton, orphan was made to grovel worm like from one side of the stage to the other as we stood and watched the spectacle of a child belittled because he annoyed a teacher. At first I delighted in the payback, but after two minutes I had had enough.

Te Pataka Ohanga the Tip of The Ice Berg - Just Wait For Partnership Schools

The public and numerous commentators have been rightly concerned about the lack of controls and insights into the use of public money granted to the Te Kohanga Reo National Trust, once they then paid part of that money to a privately owned subsidiary company Te Pataka Ohanga. Reports contained allegations about credit card spending on personal items and a $50,000 koha paid to Te Pataka Ohanga.

The Minister Hekia Parata undertook an inquiry and paid more public funds to Ernst and Young to undertake a review of the Te Kohanga Reo National Trust. That review found no fault and she was delighted. However Ernst and Young were not tasked with looking at Te Pataka because it was a private company. As Ms Parata says:

"I have no power over them. They are a private company that works for an organisation that has a contract with my department that reports to me."

"Only they can tell us what's going on in their commercial arm and they do need to front the public on that," 

"I have no power over them. They are a private company that works for an organisation that has a contract with my department that reports to me."

[Hekia Parata Minister of Education responding to calls as to why she had no control over allegations of misspending by the Te Kohanga Reo National Trust's wholly owned subsidiary company Te Pataka Ohanga (http://tvnz.co.nz/national-news/trust-s-subsidiary-needs-front-up-parata-5871352 23 March 2014).]

The trouble with this is, is that the lack of open and transparent insight into private organisations tasked with handling public money has become the norm under this Government's charter schools policy. As the New Zealand Herald reported on 14 February 2013

"Associate Education Minister John Banks has defended a proposed law change that would exempt charter schools from scrutiny under the Official Information Act, saying they will be more accountable than other schools.

Chief Ombudsman Dame Beverley Wakem told a select committee yesterday the provision in the Education Amendment Act 2012 was unconstitutional and could be "catastrophic".

Today Mr Banks said there were 5000 early childhood facilities that were not subject to the Official Information Act and he didn't believe the public-private partnership charter schools should be subject to the acts.

"The Government respects the views of the Office of the Ombudsman. However, it would be inappropriate to extend the jurisdiction of one of the Ombudsman to partnership schools.

"They are not crown entities, they will be private organisations - they are similar to the 5000 licensed early childhood education care centres, independent schools, private training establishments and industry training organisation who are not subject to the Official Information and Ombudsman Act.

Mr Banks said the ultimate safeguard for ensuring charter schools were accountable was that the Secretary for Education could request any information from any charter school and that information would be subject to the Official Information Act."

The trouble with this is that how will the Secretary for Education know what to ask for, without open and transparent accounting and auditing? Further, how will the Secretary know that he or she has been provided with the complete answer, rather than some carefully manufactured and scripted response? The public reach in terms of  the Official Information Act will therefore be limited those items of information asked for from partnership schools by the Secretary of Education and provided to him or her by the partnership school. That is a weak protection, and amounts to mere lip service.

So there you have it. The Minister is currently cringing because of the alleged private spending of Te Pataka Ohanga. Yet she has presided over establishing a regime where the same thing can happen again and again with charter or "partnership schools" 100% taxpayer funded but with des minimus accountability to taxpayers via Parliament or the Official Information Act. There's an old saying, "when the cat's away, the mice will play." Without full transparency and proper accountability the public can have no confidence that public money is being spent wisely or properly. I find myself increasingly agreeing with my friend and Auckland barrister Jeremy Bioletti who succinctly put his finger on the problem when he recently remarked, "[p]enny finally dropped. We are letting ourselves be ruled by a bunch of bozos!" Watch this space.