Justice Minister endearing in his desire to tinker with the law

Rosemary McLeod

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Rosemary McLeod

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OPINION: I should have known that if I agreed with something a government was up to - a rare event - lawyers would take to it in fury.

Justice Minister Simon Power, with his slightly blurry features, has endeared himself to me with some of his mooted law changes. But I see that he and I stand accused of kneejerk reactions and seeking popularity as a result, and I'm a little miffed. Power first annoyed lawyers by scrapping the defence of provocation for murder. This, you'll recall, was in the wake of Clayton Weatherston's trial for stabbing Sophie Elliott to death in Dunedin. He argued that she had provoked her death. I think it was something she said.

Lawyers say Power's decision on the change was rushed. Yet the provocation defence had been controversial for years, because it gave scoundrels a way of both blaming their victims and insidiously justifying their own actions. The Weatherston case was an extreme example of how it could work, and struck the extreme point of public tolerance for such legal games.

Auckland defence lawyer Gary Gottlieb is annoyed, and I understand that: criminal law is a hard slog, and it must be galling when it's made more difficult. "Laws shouldn't be changed because people get angry," he says. Yet that is exactly why laws should be changed. I can't think of a better reason. When the law starts to look callous and repulsive to us, we absolutely ought to do something about it.

Going back to 1215 and Magna Carta, which enshrined rights we ordinary people still enjoy, and as he well knows, King John was forced to sign it because a bunch of people were angry. The Rights of Man weren't dreamed up over a cosy liquid lunch on a fine day in a perfect world, either. And I could go on.

Now Power plans to change the "claim of right" defence which let the Waihopai vandals off. They argued they had a legal right to damage the communications base because they thought intelligence it gathered would cause suffering in Iraq. A jury bought that interesting claim, possibly because of their sincerity, but Power contends that the defence was never meant to excuse people who did not have a personal issue at stake.

Law Society president Jonathan Temm says both these cases were unusual, and don't require law changes. The Sentencing Act, he says, has been amended almost every year since it was introduced in 2002, and politicians were "like dogs around a bone, tearing it to pieces". And Gottlieb somewhat snarkily observes that previous justice ministers had a depth of experience and did not react to public pressure - as if that is in itself a virtue.

Queen's Counsel John Billington says the Government (that is, Power) is applying a reactive rather than an analytical approach: "The beauty of the jury system is that juries will apply the law according to the way they think it should be applied, rather than the way the Government thinks it ought to be." And there, I suspect, is the real problem. Juries are beloved of lawyers, maybe in part because they introduce a wild card element into the workings of justice. But we've moved on a long way since 1215, when our right to jury trial began, and both life and law have become infinitely more complicated.

Back then, a man on trial was likely to be known to everyone in his small community, and a jury of his peers - fellow peasants - might well be able to decide whether or not he stole a pig. But the law has now built tall towers of precedent on top of such simplicity, and developed increasingly elaborate rules for playing the game we call trials. We are all better educated than we once were, which might have helped. But educated people are the first to opt out of jury service. Weatherston, a bright but wicked man, could not be judged by his peers according to the old formula. They would have excused themselves.

We can't reach into juries and fix them, though they're the unstable element in the system. We can't even ask, afterwards, if they did their job properly. All the more reason to tinker with the laws they have to deal with, then, because juries can be cot cases. We've seen it happen.

- © Fairfax NZ News

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roxanne   #1   08:42 am Jul 23 2010

You are right! When you are right, you are right, no argument. The modern age has outstripped the concept of juries and the entangled web that is weaved before their bewildered eyes. I suspect it is time for 3 unemotive judges to weigh the evidence and come to a majority verdict in this country and take the emotion, theatre and hype out of the court room. The need for public defenders is another worthwhile topic!

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