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The Southland Times
June 23 2008

A few legal rethinks

We have for centuries required our jurors to be unanimous if their decision is to count. But we haven't the same expectation of our most senior and expert judges, writes The Southland Times in an editorial.

When our Supreme Court judges a panel of five consider who's right and who's wrong, the decision swings on a simple majority.

These are held to be the most learned jurists in the land. With all their acumen, experience, talent, diligence and research facilities, they consider cases at the most elevated level and still oftentimes wind up disagreeing. Only by majority decisions did this court rule that TVNZ could screen Noel Rogers confessing to killing Katherine Sheffield; or that Air New Zealand had breached the Holidays Act; or even that a man who sang outside the house of a Greymouth police officer hadn't been guilty of disorderly behaviour.

So we do well to remind ourselves that our system of justice doesn't necessarily throw up its hands at the notion of a majority verdict. On that basis, Parliament's decision to allow 11-to-1 majority verdicts in jury trials is realistic. The new law should not be seen as necessarily something that will lead to a huge reduction in the number of hung juries, because jurors are not to be questioned afterwards, so we never know whether a hung jury was divided 11-1, or 7-5, or something in between. What we do now have, however, is protection against the rogue juror.

The law changes also allow more scope for cases to be tried by a judge alone not only when the issues are of such complexity that there are concerns even an alert and motivated jury would struggle to get its head around it, but also cases in which jury intimidation is deemed to be a sufficient risk. Exactly whether the presumption is that judges are made of steelier stuff, or simply that they are more protectable, remains an open question.

New Zealand will now have significant exceptions to the "double jeopardy" rule that stops someone being tried twice for the same crime. This is a reaction to the case of gang member Kevin Moore who could not be retried for murder after he was acquitted only to have a key defence witness later plead guilty to perjury. Moore was later found guilty of conspiracy to pervert the course of justice and jailed for the maximum possible sentence, but it was still only seven years. (Peter Ellis, still railing against his conviction for child abuse, asks whether the legislation applies to tainted convictions as well as tainted acquittals. It's a fair question.) Fair enough, too, that methamphetamine cases can now be heard in the district court, relieving overloaded High Courts while still allowing an appropriate range of sentencing options.

The most contentious part of the new legislation, at least as political parties saw it, was the plan to dispense with preliminary (depositions) hearings designed to test whether the prosecution case is so weak it collapses on its own, without the defence even being heard. It would be overstating to call this exercise a charade, but the fact remains it is rare for cases to be thrown out at this level and it means victims have to go through the ordeal of giving evidence twice. In any case, protection against intolerably feeble or spurious cases can be retained by judges applying that test on the court papers alone.