Chester Borrows: Expediency is not justice

The courtroom is the traditional place to settle matters of law and justice in New Zealand. But it may not always be the best place.

I am awaiting with bated breath the outcome of a proceeding currently before the Court of Appeal. It involves a young woman with no previous convictions who was charged with a serious assault.

She was talking to a male in a bar when he made a comment about the size of her breasts and appeared to make a lunge to grab them. She threw her drink in his face — some would say the time-honoured protocol for an affronted female. In legal terms a pre-emptive strike on a reasonable assumption she was about to be assaulted.

At some stage later, I am not sure how long after the incident, the police were notified.
The problem is that not only did she splash her drink over his face she hit him with the glass and he sustained a cut. He didn't seek assistance but carried on partying, so presumably the injury was not severe, although the police laid a serious assault charge and the Crown have referred to the cut under the man's nose as a "significant injury" — though how significant an injury that doesn't warrant attention in favour of partying on can be, I am not sure.

So, the woman was on a serious charge of assault and defended the charge.

On attending the court for the hearing, she was taken into custody and held in the cells, despite having been remanded on bail. This is an unusual step. No sentence indication was sought, but the judge told her lawyer that, if convicted of that charge, the woman could expect a prison sentence of up to three years. The police offered a lesser charge and the judge suggested that a guilty plea to this lesser charge would result in a sentence of community work, compensation, and no jail time. The choice was to take it or leave it. If the defended hearing went ahead, it would be against the more serious charge. The lesser charge was only available if she pleaded guilty.

Anxious and a long way from home, the woman, an overseas tourist, rang her mum from the cells and could speak for 10 minutes.

She took the deal. Who wouldn't?

The appeal is made on the basis that the woman was pressured into pleading guilty when she had an obvious defence open to her — one of self-defence against a man she reasonably believed was going to assault her. As a first-time offender, she would not have normally been kept in the cells on the day of her hearing prior to the matter being called, and this also put pressure on the woman. It is alleged the judge made several comments that indicated a belief that the defence was groundless, and so the judge appeared to have already decided the case without hearing any evidence at all.

Chester Borrows

All sorts of people get pulled into the justice system. Readers will feel sympathy for the woman. It is reported that the woman in conversation with the male revealed that she had previously worked as a stripper. With that in mind, now some readers will have less sympathy for the woman and be sceptical about her complaint. Who is the victim here?

Doesn't the law treat everybody the same? Are people innocent until proven guilty or not? Is there a place for a judge giving views before hearing the evidence, even when not asked for those views by counsel?

We have recently seen publicity given to complaints against judges allegedly bullying respondents before the court, and particularly women. We have also heard female counsel making the same accusations as they have sought to present a good case on behalf of a client.

Appearing before the court as a defendant or a complainant is rarely fun — even I can attest to that — but everybody appearing in a case is due respect and the consistent application of the rules. Those who always fall in to support complainants and victims must surely recognise that sometimes the defendant has their own story to tell and are also worthy of support, if only to get a fair trial.

It is also worth noting that this incident, as it has been outlined in the media, would be perfect for restorative conferencing even before getting to court. Sitting down around the table and laying out what was going on in both parties' minds at the time of the incident would bring a great deal of clarity to the situ

This would preclude the expenditure of energy, anxiety, humiliation and without the need a significant outlay in public money.

Chester Borrows served as Whanganui MP for 12 years and as a minister in the National Government.