Drug Court Trials

I'll be interested to see how the pilot drug courts go. I harangued the program leader, Gerald Waters, on his idea last year at the NZ Drug Foundation's AGM. He gave me an assurance that the drug courts would focus on rehabilitating criminals with genuine addiction issues, not attempt to brainwash medpot users into converting to more orthodox addictions.

Good on Judith Collins for giving it a go. The US Praise The Lord system of drug courts is ill-suited to NZ's culture, but a mature NZ drug court system would sift the merely deviant from the criminally reckless.

Seen to be done

You wouldn't know it from the MSM, but there is more to courtrooms than murders. Whether it is the morbid fascination borne of watching too many UK murder mystery dramas on TV One, or the bleeding leading headlines of our ambulance-chasing tabloid papers, all eyes are on the big murder trials. All the nuance, precedent and day-to-day miseries of the majority of dock jockeys are largely ignored, never seeing the light of day.

It's one of the reasons I support court transcripts being published online at the end of each day. Instead of the MSM being the gatekeepers of the public's access to the courts, these judicial Hansards would be available for all to read.

Stephen Stratford over at Quote Unquote links to one particular court transcript which shows the potential for such a scheme:

How to talk to a judge. This PDF of a transcript of a Queensland trial has gone viral but here it is in case you missed it. It’s only 167KB so is a tiny download and well worth it. A small sample follows (warning: this is from Australia so may contain coarse language).

And now, here's Nick Cave and Samuel L. Jackson playing the same song differently:

 

A second opinion from a QC

There's a very interesting take on Simon Power's court reform suggestions by Robert Lithgow QC, on 9tN with Kathryn Ryan this morning. There's a good public interest angle on the role juries I hadn't been thinking about, in that citizen participation in civic process is important.

But what really donutted my deliberations was Lithgow's examination of Power's Lawyers' Rort suggestions. The minister's announcement on how lawyers are rorting the system perplexed me somewhat, as Legal Aid pays lawyers a measily $150 or so an hour. It may seem big beer for you and me, but in the usual lawyer rates it's rubbish. When the majority charge in 6 minute slices of billable time, fools, ambulance chasers and baby lawyers perform the bulk of Legal Aid cases.

However, Lithgow QC hints darkly at the role of crown prosecutors in the billables. Unlike Legal Aid, private law firms which perform prosecutorial jobs for the state pass largely below the political radar. It's these people who decide whether to bring a case to court, based on the police's evidence. Perhaps Power is preparing to yank the chain on the legal gravy train of frivolous prosecutions.

He could do worse than follow the plan laid out by the Law Commission's Delivering Justice For All script. If you're looking for a recession buster that uses a one shot wonder of cash for reform, courts is where I'd start. Split the district court into a Community, Criminal and Civil courts. Just leave the High Court alone. It doesn't need that much tinkering upsatirs.

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.