Putting justice on trial

Who can recall the last time a court trial of national significance and profile ended neatly with the full stop of verdict and sentence?

It is the custom of the times, and perhaps a sign of the vexed and vexing era in which we live, that no decision - or process - delivered by authorities of all provenances and purviews is accepted at face value.

We live in an age of contestability, of scrutiny, of accountability. And this, when it applies to the apparatus of the State, must be considered a virtue, for if the State is to disburse power, it must do so, and be seen to do so, with transparency and, equally, be answerable for the consequences of its actions.

It is not sufficient for it to defend the mechanisms by which it belays dominion with mere reference to the practices of the past.

To this extent, the Law Commission's project, initiated at the behest of the Government, to investigate and propose possibilities for variation in alternative criminal trial processes is timely and welcome.

The terms of its "high-level review" of pre-trial and trial processes in criminal cases include an examination of the merits of inquisitorial models, or aspects of them, and whether they might be incorporated in the New Zealand system, based as it currently is on the adversarial model; also whether there ought to be a new framework or processes to deal with sex offence cases; and the extent to which alternative approaches to cases involving child victims or witnesses, and family violence, might be appropriate.

Perhaps the most far-reaching mooted change to the present trial practice is the notion of the trial judge with an extended inquisitorial role, as pertains to varying extents in the judicial architecture of the German, Austrian, Dutch and Danish systems.

In practice, this could mean the judge playing a more directive role in what evidence is given, which witnesses are heard and in what order, and in the questioning of the witnesses.

Among the criticisms of the adversarial model are it encourages and rewards aggressive and adversarial behaviour; it can undermine the interests of justice; it sometimes traumatises witnesses; and its efficacy is dependent upon the variable quality and resources of counsel.

There is force in all such considerations. Against that, it might be argued, the inquisitorial model concentrates a greater share of the power, intellect, prejudice and energy in the hands of the judge. Already, those who consistently criticise the justice system find much to fault in the decisions, albeit closely prescribed by law, of the judiciary.

Perhaps equally radical is the proposition to dispense with juries in certain cases - especially those involving sexual offences - replacing them with a judge alone or a judge sitting with two "professional" jurors.

While, as the commission points out, juries might be more prone to myth and prejudice than judges, it is surely promulgating an alternative myth to suggest that judges bring no vestige of culture, class, politics or their own personal prejudice to bear on the cases before them.

The very notion of being tried before "a jury of their peers" brings the community into process of justice, gives the public a stake and a role in its commission. Careful thought is required before curtailing such involvement.

Similarly, the proposal that the defendant need not participate in all stages of his or her pre-trial or trial hearings. This might be seen as the thin end of an ever-thinning wedge of justice.

Granted there may be aspects of the skirmishing that do not require the presence of the charged, and which can be suitably streamlined, but the right of the defendant to be present to face or witness material accusations should be protected.

The dispensation of justice is complex and multidimensional.

It does not always run true. As the Russian poet Yevgeny Yevtushenko once put it, "Justice is like a train that is nearly always late."

Tidying up the stations along the way, is both necessary and desirable; so, too, is forging different - perhaps more direct - routes to desired destinations. But great care must be taken in tinkering with the tracks lest the whole enterprise be derailed.



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