October 2, 1997
Overhaul for bad justice
If New Zealand
were to rule off its criminal trial system and start again, chances are it
would not opt for the British-style adversarial model we have now. Some
disturbing outcomes suggest it is time to seriously consider replacing it
with the inquisitorial system used in Europe.
The central question in any trial should be: "What is the truth of the
matter?" In theory, this is what the prosecution and defence tease out
and what juries decide. But the role of the police in investigating cases,
the approach of counsel and the dynamics of the trial procedure can bring
forces into play that are decidedly unhelpful. In practice the question all
too easily degenerates into: "Who can put on the most persuasive
performance for the jury?"
The publication of a book recounting the Crewe
murders in 1970 reminds us of what can go wrong when detectives switch their
focus from openly investigating possibilities to a determination to find the
evidence to nail a suspect -- even planting a cartridge case if necessary, or
discarding evidence which does not suit. An inadequate police investigation
led to a risible verdict of suicide in the Janine Law murder in 1988: she was
later found to have been raped, sodomised and suffocated. Then police decided
12-year-old Agnes Ali'iva'a, whose body was found clad only in a sock and
tracksuit pants worn inside out, had drowned in a ditch: a re-evaluation last
year concluded she was sexually molested and probably murdered.
A slipshod investigation put Waikato
University student Nick
Wills through hell in 1995 after he was falsely accused of rape. Creche
worker Peter Ellis, found guilty in 1993 of sexually abusing seven children,
appealed against his conviction on the ground that key evidence never reached
the courtroom. Other trial shortcomings are detailed in a feature on the
Thankfully, the new Wellington
coroner, Gary Evans, is promising to conduct his own detailed investigations
where necessary, not just rubber-stamp the findings of others. He likens his
role to that of the French magistrates who are examining the death of
In the French equivalent of the High Court, an accused person faces a bench
of three judges and nine lay people. The judges, not the lawyers, drive the
process. The court calls its own expert witnesses. Neither the defence nor
the prosecution can be ambushed, because if new facts come to light there is
time to consider a response.
The defence has full access to prosecution evidence, but in return an accused
person is expected to answer questions; silence could count against them. As
in New Zealand,
the defendant is presumed innocent till proved otherwise, but judgment may be
determined by a two-thirds majority of the lay and professional judges.
European courts may not generate the drama of British and American
courtrooms, but the process focuses everybody's minds on ferreting out the
truth. For this, it helps to have the judges actively involved in
establishing the facts, rather than largely refereeing as the prosecution and
the defence slug it out.