KEY POINTS:
In Trial By Trickery I have noted some very basic questions that are raised by R v Watson. They need resolution if I am to regain trust in our justice system.
Why is it that lawyers don't have to swear an oath to tell the truth when they make statements in court? Everyone else does. Presumably lawyers are more honest than everyone else. There can be no other answer than this.
If it's not true, then there is a fundamental flaw in the system which can easily be addressed. If it were true, lawyers would never mislead court and juries. But, I think, they do, not infrequently.
(Editor's note: lawyers do swear a form of oath when admitted to practise in New Zealand. They are bound by the Rules of Professional Conduct which specifically constitute all lawyers as officers of the Court and provide that all lawyers have a duty to tell the truth in Court).
Why is it that we have "prosecution evidence" and "defence evidence" and rules which determine just when and how often each side can view the evidence of the other? Why don't we have only court's evidence, available to either side, under supervision, at all times?
Why do judges not have a role in uncovering the truth? Why are they just referees in a combat sport? Surely their experience of crime, criminals, criminal matters and human behaviour in this environment makes them perfectly placed to seek out the truth?
How many judges in criminal cases have little or no experience of criminal matters? Should criminal courts and appeal courts be presided over only by judges with criminal experience?
Why are judges not trained in their function? Do they have special powers that protect them from making decisions based on prejudice or prejudgment?
Should we really trust that juries of lay citizens who have no specific aptitude or training in analytical thinking will peel away the layers of inconsequential detail and find the evidence that will guide them to the truth? How often do they convict because the accused "looks like a criminal even if he didn't do it this time"?
Why are prosecution strategies which aim at convicting at all costs not "conspiracies to pervert justice"?
The Crown told the Court of Appeal in the Watson case that "Prosecutors have a duty to be dispassionate and scrupulously fair. However, the fundamental function of the prosecutor is to prosecute, and in doing so endeavour to prove the charge before the Court".
The prosecution's function is to lay out all the evidence that has been gathered and allowing the evidence to do the convicting. According to the rules that supposedly guide prosecutors, the role is not adversarial but that of a 'Minister of Justice', a phrase that has resonated around the halls of justice for over a century.
These are some of the questions that need answers in any quest for a proper working justice system. As New Zealand is becoming an international leader in suspect convictions, we are perfectly placed to lead the development of a criminal justice system which works.
