Letter to the Editor, Thursday August 13, 2015

Travesty of justice

There have been, from time to time, efforts to change our justice system from the adversarial to inquisitional, so all the evidence can be presented that would enable the truth of the matters in question to be resolved beyond all doubt. In general, the system, with all its drawbacks, has in the majority of cases delivered a high degree of satisfaction. It is not until one comes face to face with the inadequacies of current practice that one gives serious consideration of the alternatives.

One is entitled to ask whether the high-profile trials of recent history would have resulted in different decisions, with the accompanying large compensatory payouts, if all the combined resources of state and accused had been directed with the single, united purpose of seeking truth using the proposed inquisitorial system.

One such example where the adversarial system has miserably failed to deliver justice has come very close to home, and therefore attention is focused on frailties of our current practice.

In the case of the Crown v Kelly van Gaalen, not only has justice not been done, or seen done. A serious breech of natural justice has been perpetrated under the guise of the 'respectability of the law.'

Resulting from a vicious home invasion a year ago, Kelly van Gaalen faced a charge of possession for supply in the Kaikohe Court. That the evidence used as the basis for production was obtained as a result of the home invasion, was it is believed, privileged, and all that that means.

Kelly freely admitted possession of a quantity of cannabis, which was the result of the exceptional growth of one plant grown in her very fertile vegetable garden. There was never any intention of selling, but by inference and suggestion, the police and the crown prosecutor managed to convey the impression that over a given amount it was unquestionably there for 'supply' ie for sale, a criminal offence.

Even the innocuous domestic practices, customary in nearly every home, were given sinister connotations, as was the fact she and the children were absent from home the night of the invasion. A chance coincidence involving her young son's birthday party. As a result a jury, observing the presiding judge's demeanour, and despite considerable misgivings, finds her guilty.

The tragic consequences of this outcome, where a judge has failed to exercise his discretion, even to the point where he questions the right under Section 27 for support people to speak up for the defendant at sentence time, are such that a family is to be deprived of its rock and a community loses one of the best advocates ever to surface in two generations. Even the very wide, clear cross-section of declared support for Kelly is discounted and thinly disparaged.

It is very difficult to uphold one's belief and faith in the system when travesties of justice are so easily seen to be countenanced by those who sit in judgement. In similar fashion, a community stands condemned if it stands idly by, if this is to be the mark of gratitude for services so freely given.

A common feature of all trials is counsel seem to delight in quoting precedents. A precedent is simply something where at some time somebody has exercised their discretion and common sense and then made a decision on the circumstances laid out before them. Such discretion was available here, which could very well have created another precedent. But it was not used. Why not?

It is very hard to see where justice was seen to be done in this instance. It smacks of the stupidity of using a pile driver to pulverise a peanut.

L J KNIGHT

Kaikohe