Defects in our justice system
MARTIN van BEYNEN considers how useful juries are, and what alternatives there are.
The recent spate of high- profile acquittals, including those of Ewen Macdonald and George Gwaze, has understandably prompted some disquiet over juries, the police and our whole justice system.
Knee-jerk reactions, however, are not going to do us much good. We need to remember that every week the system works well in hundreds of less sensational cases, and the tests we set for juries have been refined over hundreds of years.
The police can also do an impeccable job and still not quite get there with the evidence they collect.
It is often a fine judgment whether charges should be laid, and inevitably the police and judges will, in some cases, make mistakes on whether cases should go ahead.
When millions of dollars have been spent on a case that fails to achieve a conviction, we should be very concerned, but the old adage that it is better 10 guilty men should go free than one innocent person be sent to prison is worth keeping uppermost in our minds.
Some shocking injustices have occurred over the years. Just think of Lindy Chamberlain, whose saga recently drew to a close, with the Darwin coroner finally finding "the dingo did it", and the incredible fight she had to prove her innocence.
In Christchurch, Peter Ellis and his fellow Christchurch Creche workers seem destined never to get the justice they seek.
It is galling when obviously guilty defendants walk free, but remember also the system exacts revenge of some sort of another. A not-guilty verdict does not equate to a finding that the defendant is innocent, and Macdonald, for example, is never likely to have a normal life again.
It is also tempting, in the light of the acquittals, to jump to the conclusion that the system is stacked against the prosecution.
But anyone who has been grist in the system's mill will be only too aware of the formidable resources that can be mounted against an individual.
The mere fact of being the defendant creates an inevitable prejudice. The automatic question of why the police would bring a charge if the defendant wasn't guilty weights the system against a defendant.
During the past 20 years, I have covered many trials as a reporter and have seen first-hand why we should all have some real concerns.
I am not telling you anything new in saying the better educated of our working citizens manage to avoid jury service because they can show they are simply too busy and can't spare the time.
Some have a good reason not to do jury duty. Jurors can find themselves substantially out of pocket if their employers decide not to continue to pay their wages or salaries while they sit on a jury.
All this means that sometimes juries are just not up to the task. Recently, I watched a young man who could not keep his trousers up retire to the jury room to decide a man's fate, and almost every jury contains members who don't have a clue.
With complex cases, we place an unfair burden on juries.
Cases involving complicated financial, medical, DNA or forensic evidence are particularly unsuited to the current jury system.
Expert evidence is often finely nuanced, and lay juries have no way of being able to assess the weight and worth of certain facts and views. Lamentably, I have seen many experts overstep the mark between independence and advocacy.
Confronted with a mass of complex factual evidence and the various interpretations of experts, juries will sometimes opt for the experts they like or equate their inability to understand with a reasonable doubt.
It is also high time we looked at whether our adversarial system is the best way of getting to the truth.
Trials are too much like a game of chess between lawyers, with tactics sometimes getting in the way of the real story.
For instance, in the recent trial of Gwaze, a Crown witness, when pressed by the defence, gave evidence that contradicted the Crown case.
The Crown prosecutor did not ask her to explain when he had the opportunity to re-examine her, because, as he later said, "I didn't know what she was going to say".
In other words, it was better to leave the issue hanging than risk the witness digging a bigger hole for the Crown.
Here are some solutions.
We need to be choosier about which cases go to trial.
Crown prosecutors and the police have a vested interest in seeing cases go to trial and we need a more independent approach to deciding what resources are devoted to.
Trials are needlessly long and much more could be done to get the sides to agree on certain facts.
Forget about jury trials for serious cases in which complex science or financial evidence will feature.
I think we will get much better results if these cases are heard by a panel consisting of a judge and several experts or advisers.
Should we maintain the right to silence?
Yes. If the Crown can get home only by showing up the accused in the stand, which could happen for a variety of reasons, then the evidence is probably not there.
Bear in mind that no system is perfect and people will always get things wrong.
That's why we need a less legalistic way of reviewing cases that is quicker and more potent than the present system.