Risking confidence in judiciary

Winston Peters' lawyer Brian Henry appears before the privileges committee via video link from...
Winston Peters' lawyer Brian Henry appears before the privileges committee via video link from Australia.Are the basic rules of a judicial tribunal being applied? Photo by NZ Herald.
It will be a travesty of justice and an insult to every citizen who has suffered an adverse finding made against him in a court of law if the parliamentary privileges committee does not make an adverse finding against Winston Peters this week.

I am angry to the point where my column will not this time have a joke in it. There are plenty enough jokes already participating in this farce.

I write solely from a legal point of view.

It is not the part of this column to get involved in politics but I want to analyse the judicial process which is going on here.

The parliamentary privileges committee sits as a judicial body.

It is able to receive evidence on oath and cross-examine witnesses.

In doing so, it simply must follow the basic rules of any judicial tribunal.

My first concern is that a partisan approach along party lines has already occurred.

All parties can be criticised.

Questions by Government members on the committee are gentle and certainly not robust enough.

Questions by opposition members are probing but also show a partisan approach.

If that is not enough, we have the bizarre spectacle of Michael Cullen reporting to the Prime Minister on progress being made and, as a result, the Prime Minister commenting publicly on the value of the evidence to date.

She is reported as saying there would have to be "devastating developments" before she decided to sack Mr Peters ahead of a full report from the privileges committee.

Helen Clark said her advice from Labour MPs on the committee was there was still conflicting evidence and she should "let the process continue".

She should not have been saying anything! She was effectively commenting, as Prime Minister, on the value of the evidence to date as related to her by a member of that committee.

This is extraordinary and debases the fundamental concept of justice not only being done but being seen to be done.

Now let us look at standards of proof as they apply in civil and criminal courts.

In civil courts, where the claim is for damages and disputes between citizens are determined, the civil standard of proof is applied.

This is called proof "on the balance of probabilities".

This means that the person who is asserting a fact has to prove that his or her assertion is more probable than not.

It is a lower standard although still high.

Judges have to be satisfied that the case has been proved upon the balance of probabilities, having heard all the evidence.

In criminal courts, everyone knows that the standard of proof is beyond reasonable doubt.

This is a higher test than the civil standard.

A judge, or a jury, has to be satisfied beyond a reasonable doubt.

An accused person is entitled to the benefit of a reasonable doubt.

But a reasonable doubt certainly does not mean beyond a shadow of a doubt or beyond a fanciful doubt, or even this rather disturbing test of "devastating developments" posed by the PM.

To be fair, she was referring to the sacking of Mr Peters prior to decision by the committee.

Those tests would be impossible.

But, unfortunately, in this modern age of trial in the media, it has become almost commonplace to suggest that a fanciful doubt or a shadow of a doubt means that any allegation must be dismissed.

This would mean that no case could be proved unless there was an eyewitness or a confession and, even then, the disgruntled convicted felon would no doubt question the eyesight of the eyewitness or the truthfulness of the constable taking the confession.

It's always the acquitted accused who stands on the courthouse steps proclaiming "A triumph for British justice".

You never hear a convicted villain trumpet the same slogan.

But evidence is not always direct. Frequently it is indirect or inferential. Direct evidence in a murder case is a witness saying "I saw him shoot the deceased" or a confession such as "I shot the deceased".

Indirect evidence could come from the actual firearm used in the killing being found under the accused's pillow, or a false alibi being discovered.

Motive, opportunity, fingerprints and DNA evidence is usually indirect.

There is nothing wrong with that.

It happens all the time and judicial tribunals, from the High Court down to JPs sitting in the traffic court, apply commonsense tests to charges ranging from murder to failing to stop at a stop sign.

Even minor charges are dealt with against the standard of proof beyond reasonable doubt.

Now, in the case of this parliamentary privileges committee, the initial standard of proof is on the balance of probabilities, but having regard to the serious allegation of misleading or failing to declare it would be wise for the committee to increase the standard somewhat as a court of law does in the civil case where the particular allegation may be of a criminal or civilly fraudulent nature.

It is here where I come back to my opening proposition that a whitewash in this case could tarnish the public confidence in all judicial authorities.

The pivotal and direct evidence comes from Owen Glenn.

He says he spoke with Mr Peters and discussed the donation.

The defence attacks his credibility, or at the very least his reliability.

But this is where the indirect evidence pours in.

Mr Glenn's testimony is supported by overwhelming indirect evidence of the timing of the telephone calls, the sending of the e-mail by the lawyer Mr Henry and Mr Henry now conceding that the words "his client" referred to Mr Peters.

Continual denials simply cannot get around this evidence.

If a young apprentice was charged with, say, using threatening words, and faced supportive evidence such as telephone numbers, corroborative timings, a backup e-mail and sudden recovered memories, then any judge would be compelled to convict and I suggest that there would be words in the judgement along the lines "I simply do not believe the defendant.

He has been prepared to mislead this court."

There must be no lowering of the standards before a parliamentary privileges committee.

Members of Parliament are themselves the first to proclaim that Parliament is the highest court in the land.

In a sense, it is, but the parliamentary privileges committee is the delegated embodiment of that principle.

Any lessening of standards in the judicial assessment of the facts before this committee will create a contempt within a younger generation of New Zealanders that the more powerful and vocal you are the more you can get away with misconduct.

- Michael Guest is a former lawyer and District and Family Court Judge


 

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