The case of Mark Lundy was notable for many appalling details, not the least being one element of his defence. Lawyers for Lundy tried to cast doubt on a crucial piece of prosecution evidence - traces of his wife's brain tissue on his shirt - by suggesting the police might have put it there.
That proposition was rejected by the prosecutor, Ben Vanderkolk, as, "baseless and wicked". Wicked is a strong term for a lawyer to apply to the suggestion of another, but it seems entirely the right term for this one. Is there no limit to the careless insinuations that defence counsel can make within the privilege of a courtroom?
Lawyers for the accused under our system are not obliged to prove anything. The burden of proof is entirely upon the prosecution to establish criminal guilt beyond reasonable doubt. That word "reasonable" ought also to preclude utterly groundless suggestions from the defence. The trial judge, in his final instructions to the jury, is bound to warn them that reasonable doubt does not mean fanciful possibilities. The verdict on Lundy suggests that none of the jurors found a compelling reason to support the theory of falsified evidence, and it is a pity it was able to be made.
It is a particularly cheap suggestion because New Zealanders well remember their police were once found to have planted evidence against Arthur Allan Thomas, convicted of the Crewe murders and later pardoned. How the police must regret that incident, more than 30 years ago now, and considering the eventual fate of that case, how they must have resolved never to see it repeated. That at least seems a more reasonable conclusion than the idea they would routinely resort to the same deception.
The suggestion was all the more reprehensible because Lundy's defence was not devoid of more arguable propositions. The difficulty of driving between Palmerston North and Wellington in the time available seemed the strongest element in his favour. The shirt smeared with brain tissue, found in the back of Lundy's car, obviously demanded an explanation. The Crown regarded it as convincing, "the silent witness to the killing," Mr Vanderkolk told the jury. The tissue came from the victim, the shirt belonged to the accused. There might be no other way for a lawyer to serve his client than to imply that the police put it there.
But even criminal defenders surely recognise a larger responsibility. Public confidence in the police is an important element of people's regard for the law, and that confidence should not be undermined without good reason. Desperation on the part of defence counsel is not reason enough.
Police, too, have their professional pride and a right not to have their reputations impugned without cause. The visible response of the officer on the witness stand when this insult was put to him spoke volumes. Professionalism in any field of investigation demands that the investigator follow the evidence wherever it may lead. To wilfully interfere with the evidence runs against the true investigator's core instinct - and the law.
In some systems of law a criminal trial is essentially a continuation of the investigation, and both sides are seeking the truth. Our system, in the British tradition, is adversarial rather than inquisitorial, giving the impression sometimes that neither side is seeking the truth. One side is trying to secure a conviction, the other trying to cast doubt on the case. But prosecutors are obliged to deal in evidence and fair reasoning. Perhaps it is time defenders were obliged to do so too. If ethics and social responsibility have a role in their profession, the police, and all witnesses for that matter, should be spared insults from a lawyer that are simply off the wall.
<i>Editorial:</i> Slur on Lundy case police damaging
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