Is this justice?

The justice process should accept that accidents happen, and court does not have a role to play. Picture / File

Justice was supposedly done, finally, when a charge of carelessly operating a vehicle causing the death of a man at Te Paki on February 4 last year was dismissed in the Kaitaia District Court. Judge C.J. Field found, without the need for hearing directly from or the cross-examination of witnesses, that there were no grounds to criticise the driving of 72-year-old Clarke Robson. There had been no negligence, Judge Field said. Indeed, "contributory negligence" had not been suggested.

So why was Mr Robson charged? That's a good question, one that should be answered by the police.

The manner in which we are policed, and the process followed in deciding who should and should not be charged, has evolved over the years. Those who remember the 1980s and '90s might well believe that is no bad thing. It will no doubt continue to evolve, and it is becoming increasingly apparent that the system is now in need of a re-set.

The police, indeed all civil servants, were once trusted to exercise a degree of discretion, and some, no doubt, still do. There is anecdotal evidence that decisions made by police in this community not to prosecute have, however, been over-ruled. Thus decisions are apparently made under the "ready reckoner" system that seems to apply throughout the civil service. Such and such has happened, therefore this must be done, regardless of the evidence, or a rational interpretation of the evidence.

This insistence on doing things by the book was starkly illustrated some years ago when Corrections paroled a prolific sexual offender, who for years had preyed on elderly women, to a city address where he was surrounded by elderly women. That decision, which was widely scorned, was stoutly defended by Corrections on the basis that it had been made according to the guidelines. That, it seemed, was the only defence necessary. Follow the prescribed rules, no matter how no nonsensically, and no one can be accused of getting it wrong.

The same thinking seems to have crept into the guidelines that the police are required to follow when it comes to laying charges against people who have unwittingly played a part in circumstances that result in what would justly be seen as a tragic accident. That is how the death of South Korean tourist Jin Chang Oh at Te Paki in February last year was seen by Judge Field, and that is how it should have been seen by whoever had the job of deciding whether Mr Robson should have been prosecuted.

According to witnesses, Mr Robson had been driving his bus about 5km/h, or, according to another witness, walking pace. Perhaps he was driving too close to the foot of the dune that Mr Oh was descending, but Judge Field clearly did not form that view. Nor did he agree with the prosecution that Mr Oh would likely have survived had Mr Robson's bus been stationary at the moment of impact.

Whether Mr Robson was or was not driving too close to the foot of the dune isn't clear, but the court found that he had done nothing wrong. If there were lessons to be taken from what Judge Field accepted had been an accident, one to which Mr Oh had in fact contributed, then they could have been learned and acted upon via the coronial system. It was not necessary to prosecute Mr Robson in the expectation that that would somehow make the delivering of tourists to Te Paki, and continuing to offer sandboarding as a tourist attraction, safer than it had been before February 4 last year.

This is not some sort of theoretical exercise. Mr Robson was effectively before the court for more than a year. Fundamentally, the decision to prosecute should have been made according to the degree to which the available evidence supported it. If Judge Field could reach the conclusion, based only on witness statements and a video, that the evidence did not support conviction, and in fact did not get close to that point, how did the police come to the conclusion that it did?

The decision to prosecute should also have considered whether the wider public interest was being served, and whether Mr Robson had fallen so far short of the standard expected of a prudent driver that he deserved to be put through a process that must have been extremely difficult emotionally, and perhaps financially. Whose interests were being served?

The laying of charges when there seems little point, or justice, in doing so did not begin with this case however. The woman who was driving the school bus that struck a Kaitaia College student in Pukepoto Rd on October 31, 2011, was also put through a totally unnecessary wringer, for no benefit to the student, society as a whole or anyone else.

The writer recalls that incident very clearly. The student, who was using earphones to listen to music, had been crossing the road directly in the path of the bus, the driver tooting at her, with no effect, then, pulling sharply to the right in an attempt to avoid hitting her.

She almost did avoid a collision, but the front left corner of the bus struck the girl's head, inflicting injuries that could well have been fatal, and which required years of rehabilitation.

The driver was charged with careless driving causing injury, despite clear evidence that the student had to a large degree been the author of her own misfortune. And she was finally acquitted, like Mr Robson after a very short court hearing, in March 2013.

Judge Greg Davis found that the "accident" had been entirely unavoidable as far as the driver was concerned. The driver had said that she had seen the student from a distance of about 50 metres, but the police evidence reduced that to 26 metres. The prosecution estimated the speed of the bus at between 35km/h and 41km/h.

It was difficult then to see how the bus driver had been careless, and it still is all these years later. It is just as difficult to see how Mr Robson was careless in February last year, and still will be in many years' time.

In both cases the police had evidence that strongly suggested the absence of carelessness. So why lay charges? If the prosecution guidelines are so inflexible as to have left them no choice, then the guidelines need to be changed. If they do allow a degree of flexibility, then the police need to change the way in which they are being interpreted.

To be fair, the police have to tread a fine line, and should not be in a position where they only prosecute when they can be all but guaranteed a conviction (a benchmark that seems to apply to some other government departments, and local government, on the basis that prosecuting and losing is a waste of money that could be better spent elsewhere).

But these two cases display an egregious failure to examine the available evidence in a dispassionate, reasonable manner, at huge cost to those charged.

In these two cases, and there will be more, those charged paid dearly, both waiting for well over a year to have their names cleared. At the end of the day, they did not get justice. As the legal system accepts, justice delayed is justice denied. In fact they both suffered a severe injustice. The process that put them before the court did not serve them, or anyone else, at all well. It needs to change.