Gary Gotlieb: Knee-jerk laws undermine justice

Gary Gotlieb in 2001 after winning an appeal for clients who had been wrongly convicted of aggravated robbery. Photo / Martin Sykes

I have been a criminal barrister for over 40 years. In that time, the population has more than doubled.

This has resulted in an increase in cases coming before the courts. Criminal offending has not in my observation got any worse.

It is just reported more often in a sensational way that makes the public and politicians demand a change in the law. The catch cry regularly reported is that as a society we need to "lock them up" or "we are good and they are bad".

Law changes come at a disturbing rate. Revoking the defence of provocation was a knee-jerk reaction to an aberrant case. The defence of provocation was rarely successful in practice but it was there for exceptional circumstances.

I note that it has not been replaced with a defence of diminished responsibility, unlike in England, which saw the need for the law to still recognise such situations.

I was brought up to believe that less privileged people deserved to be treated fairly and with compassion. Some accused people have difficulty reading or writing, have low IQs, suffer from head injuries or have behavioural issues sometimes due to other circumstances, some of which they bear little or no responsibility for.

Once prisons used to have full-time teaching staff to help these people and tradespeople to teach them skills. Over time, our society has become less caring on the whole.

An exception to this was the Herald's 2010 person of the year, Emma Woods, who showed understanding, compassion and forgiveness to the young man who killed her child while driving. Let us hope the politicians take note.

A first attempt at changing a tried and tested system of depositions (a pre-trial hearing to determine the sufficiency of the Crown's evidence) was started by the Labour Government and completed by the National Party in 2009 for the purpose of "streamlining criminal procedure" by speeding up the process of getting people to trial.

The Government was warned by both the Law Society and a group of QCs who met the minister that such change was ill-conceived.

At depositions, cases were often resolved. The Crown had a complete file, and the case was tested, often resulting in a guilty plea or a lesser charge which saved the need for a trial.

Under the new system, the Crown will have an incomplete file as will the defence. The new committal process puts unfair time constraints on police and an accused person is now committed for trial by court registrars.

Last year I vigorously resisted a charge of murder being committed to trial as it seemed clear to me that there was no evidence that the victim, a baby, was alive at the time of the alleged offending. Luckily a senior experienced prosecutor accepted, after discussing the facts with the pathologist, that this was the case and the charge of murder was withdrawn.

My client pleaded guilty to a lesser charge. It saved the state the cost of a trial and the parties the trauma of going through such an experience. Under the old system of depositions, I would not have had to go through such a process and the same result would have occurred.

It is not working and the queue is simply getting longer. Manukau District Court had a backlog of 150 trials. Under the new system, that backlog has increased to 300.

We have now had thrust on us a new criminal procedure reform proposal. A 562-page Criminal Procedure Bill was presented to Parliament on November 21 and submissions are due to be filed by February 18.

This bill has been in the process of development for a number of years but it is disturbing that the window for submissions is so short, especially given that a portion of that time is over the Christmas holiday break.

I do accept that the court process can be improved and accept some of the proposals but a number of significant changes are being snuck in.

The right to elect trial by jury has been restricted to people who are charged with offences where the maximum penalty is more than three years' jail. A number of important types of offences will no longer be able to be tried by a jury including, for example, assault with intent to injure, assault on a child, male assaults female and possession of offensive weapons.

In addition, the proposals will remove the prohibition on allowing adverse inferences to be drawn from the failure of a defendant to answer a question. The right of an accused to remain silent has been enshrined in our law by the Bill of Rights Act and the Evidence Act.

Many people, when spoken to by the police, are in shock or have limited abilities. The Chief Justice in 2007 issued a practice note on police questioning which is designed to protect the rights of individuals when being questioned. Many miscarriages of justice have occurred at this stage and to remove this protection from the law shocks me.

A further extension of this is that if an accused person fails to set out in advance his or her defence then an adverse comment can be made against them. This is almost a reversal of the onus of proof which now exists.

Currently the law requires the prosecution to prove guilt. A defence lawyer's role is to fearlessly protect the client from being convicted and to put any proper defence. The Bill of Rights enshrines the right to a fair trial but the proposals completely undermine established law.

The proposed changes display an attempt by the state to bolster its powers when it already has significant resources at its disposal. These changes should concern all citizens.

A significant review of potential miscarriages of justice was conducted by Sir Thomas Thorp (a retired High Court judge) in 2005. He researched 53 applications and found that at least 20 of those applicants might have been wrongfully imprisoned.

He concluded that there were significant shortcomings in our review systems and that the incidence of miscarriages had been underestimated and recommended the setting up of a specialist tribunal to review the convictions.

To date, no action has been taken to implement his recommendations.

This article does not allow a detailed examination of all the proposed changes but of significant concern is the change in emphasis from an adversarial process which has been developed over centuries to a more inquisitorial process which can compromise the current necessity of properly testing the evidence.

* Gary Gotlieb is a former president of the Criminal Bar Association, associate president of the Auckland District Law Society and vice-president of the Law Society.