Tuesday, May 19, 2009

Simon Power and the court of public opinion

Back before I was even a glint in the old man's 7 oz glass, Trev was invited to become a judge. He turned it down on the grounds that he would have to stop going to the pub and having a yarn with his mates. You are your job. Doctors diagnose only sick people, dentists judge a person by their teeth, and Dad suffered for it enough as a lawyer. He was known as the Baddies' Buddy in the local scene. He didn't yearn for the rarefied isolation that comes with the territory being a judge of one's fellows.

That's what hunting and fishing is for. Even then, the ducks and rabbits had a reasonable shot at it. Two chances was what you had with the 12 guage, not the semi-automatic lunacy these days, that turns the sky into an AA battery-sized cloud of steel hail. Any fuck-knuckle duck hunter can kill these days, but they'll be spitting pellets at the dinner table.

Which brought up another problem for the old man with taking up a judgeship. While there are many misdemeanours that can go under the radar, poaching is not one of them. While a firm advocate of property rights in general, the old man considered himself an exceptional poacher.

All this is a very roundabout way of getting to Simon Power's kite flying on last Sunday's Q&A over court reform. Power set out a trifecta of ideas on how to right-size the justice system; abolish the right to jury trials for offenses punishable by three years or more in prison, weighting sentencing of no-show court appearances towards guilt, and reform of legal aid to stop lawyers from milking the system.

When I heard about the change to jury trial elligibility, I got a loud ping on the Law Commission's Delivering Justice For All report that has been gathering dust since 2004. The report, which I covered for NORML News, went further than Simon Power, arguing for cases below TEN years imprisonment to be heard by a judge only:
In Delivering Justice For All; A Vision for New Zealand Courts and Tribunals, recommendations are made to replace the District Court with a Community Court, Primary Criminal Court and Primary Civil Court. The Community Court will hear most, if not all, cannabis offences. Offences with sentences up to a maximum ten years imprisonment will be heard in the Community Court by a judge. There will be no option for jury trials in this court.

At first glance, this is bad news indeed. For over a century, Kiwis have been entitled to trial by jury for any offence punishable by at least three months' imprisonment. This was affirmed in the Bill of Rights Act 1990. Jury trials are essential for 'Trojan horse' jurors to express their repugnance of stupid prohibition laws by finding cannabis offenders not guilty regardless of evidence. Check out the related news blurb to see another attempt at jury-tampering. Thankfully, the Law Commission report is painted on a broader canvas.
I'm not sure whether this report was the germ for Mr Power's idea, but if so he took the edge off this report by some margin. Either way, some 1000 potential jury trials a year are facing the chop. I was a bit shocked when No Right Turn pointed out that this was 60 percent of the total jury trials to be done away with, at a miserly saving of $20 million a year.

Now any schmuck who ends up before a court will pick jury over judge any day. Better to throw yourselves at the mercy of one's peers than the peerless whim of a bewigged one. Maybe they have a golf appointment to meet, or they just don't like your shoes, but it's fair enough to seek the law of averages with the average Joes.

At least with the Law Commission report, there was some quid pro quo. To balance this change, the Commission looked at introducing a minor offence regime to take the small fry out of the court as well, while formalising the police's Diversion scheme into a more constitutionally applicable framework:

The biggest bud of hope is in Recommendation 32 of the report, which states: "The minor offence regime should be examined to be determine whether some minor offences should be reclassified as infringement notices, or removed from the statutes and regulations altogether."

Minor offences are classified as punishable by a fine of up to $500, which is the maximum fine for possession of cannabis under the Misuse of Drugs Act.

The Law Commission strongly pushes for the Police Diversion scheme to be replaced with a formal caution system. Concern is raised that the current process oversteps the police's constitutional power, empowering them to instigate both arrest and punishment proceedings. In short, that means the Legislative arm of government is buggering with the Judiciary. Workplaces are covered by a verbal and written warning process that provides intermediate stages before the big guns are brought out, but an equivalent system for minor offenders does not exist.

Either police let you off or you are charged and risk a criminal record. There is no middle ground.

A formal caution scheme would use the police's existing powers of discretion to determine whether less serious offending is really worth all the paperwork and wasted time.
Then again, this is not a million miles away from the Anti-Social Behaviour Orders I've come to oppose. If the bar is to be raised, make the threshold for crimes punishable by over one year, and decriminalise the small stuff.

For the rest, I defer to FE Smith in this Kiwiblog thread, as well as
Robert Lithgow, Queens Counsel.