Fran O'Sullivan: Protect our basic right to trial by jury

Tuhoe activist Tame Iti. Photo / Alan Gibson

The Court of Appeal's decision to deny the "Urewera 18" the right to have a jury trial is a major offence to New Zealand's proud human rights record.

I hold no brief for Tuhoe political activist Tame Iti and the 17 others who were arrested in the wake of police raids on so-called paramilitary training camps in the Ureweras.

Widely leaked police affidavits painted a colourful story that no doubt alarmed senior political figures who were briefed by the security services ahead of the raid.

But the Urewera 18 have been waiting more than three years now to defend various firearms offences in what is a highly political and controversial case. Under these circumstances it is surely untenable for a senior court to rule in the prosecution's favour and deny these people a right to have their case heard by a jury of their peers.

Nor is it tenable for the Court of Appeal to refuse to say publicly why it has ensured the upcoming trial will be one decided by legal insiders.

New Zealand politicians (I'm thinking of Phil Goff) bang on about how they challenge Chinese politicians to lift their country's human rights game whenever they meet on formal bilateral business. Goff should look closer to home.

Judging by scarce news coverage, even Greens MP Keith Locke - who has been the subject of Security Service surveillance - has had little (if anything) to say on the court's decision. But unless this carry-on is challenged this country runs the risk of being set on the path to Star Chamber hearings, where any activist facing serious charges will essentially be subject to a secret trial.

Particularly if the evidence is obtained under the Terrorism Suppression Act.

It has been a long time since former police commissioner Howard Broad called showtime and sent his officers into Tuhoe territory to hunt out those he believed were planning terrorist attacks. The fact that the Urewera 18 are not still behind bars suggests the authorities do not seriously believe any of them pose an immediate threat to public safety.

Otherwise surely the prosecution would been pressured to get this case to trial with considerable alacrity.

I don't have an inside knowledge either of the exact grounds that High Court judge Helen Winkelmann applied when she initially denied the accused their request for a jury trial. Not only did Winkelmann suppress her reasoning for her December 9 decision last year but she also suppressed (for some weeks) the fact that she had made it.

But the fact that the trial will take more than 20 days is not a sufficiently credible reason for a judge to stop the accused from being tried in front of a jury. Nor would it be credible to claim that this case is imbued with such complexity that a layman jury could not reach a decision on the basis of the accused's response to the Crown's evidence.

At its heart, the Urewera 18 case is not complex. It is being made complex by the prosecution's apparent drive to retrofit the case so that the police can use what was initially deemed illegally gained evidence to bolster their submissions.

A judge-alone trial might make sense where a layman jury would struggle if it had to pick its way through complex evidence in a criminal commercial trial (particularly where defendants have relied on butt-covering legal advice to justify dubious board decisions).

But even then it is possible a jury might well apply more commonsense than a judge whose training will have imbued him/her with the notion that senior commercial players have a "right" to rely on advice.

This leaves the question of the jury's own safety. Are the judges concerned that laymen might be intimidated by Iti and his fellow accused? If that is the case, why not simply say so?

Trial by jury is a long-standing right which must continue to be valued. And in a high-profile trial like this one a jury is better placed to ensure public accountability.

The New Zealand judiciary's own reputation took a pounding when a special deal was cut to allow former Court of Appeal judge Bill Wilson to resign gracefully from the bench after he faced a conflict of interest investigation.

Confidence needs to be built back into the system. The Court of Appeal's ruling must be challenged in the Supreme Court in the wider public interest. If it delays the May 19 start to the upcoming trial (brought forward from the original August start date which would have conflicted with the Rugby World Cup) so be it.